What is a Geofence Warrant and is it Constitutional?
Based on a recent federal district court decision, “geofence search warrants” for Google location data are subject to being challenged as an unconstitutional violation of privacy. The judge in that case refused to grant the warrant because it was too broad and violated the Fourth Amendment protection against unreasonable government searches and seizures.
What is a Geofence Warrant?
Geofence search warrants are requests by police to obtain sweeping information of all mobile device users in a specific location at a certain time. Search warrants using third party location data are often used in federal criminal investigations. They are often requested to identify possible suspects or witnesses to crimes. With geofence warrants, innocent users are likely unaware that their private location information is being shared with the government.
Google receives many of the geofence warrant requests due to its “Location History” technology and reach of over 2.5 billion active devices worldwide. Google’s Android operating system uses GPS signals, Wi-Fi networks, Bluetooth beacons, and cell tower data to gather and store user information. Google applications like Google Maps, Gmail, Chrome, and YouTube are also used to gather similar information on Apple users. The popularity of geofence warrants has grown significantly over the last few years. Google estimates such requests increased over 1500% from 2017-2018 and another 500% from 2018-2019.
Geofence Warrants Raise Serious Privacy Concerns
Recently, the U.S. District Court in Illinois reviewed the Government’s application for a Google geofence search warrant. It was revised three times and was denied each time on constitutional grounds for being too broad.
In that case, the initial Government search warrant application requested three types of information: 1) location history data for any user located in two set areas during specific date and time ranges; 2) blinded information of device IDs, timestamps, location coordinates, display radius, and data sources; and 3) ability for the Government to request subscriber information from selected device IDs.
The court ruled that the location radius extended beyond the specific crime location and was too broad because it contained residential units, retail shops including a grocery store, public sidewalks, parking lots, and city streets. As a result, the warrant would gather information of any user that ventured into the designated area during that time. There were also no protections in the warrant against releasing information of uninvolved persons.
Despite efforts to change the warrant application by shrinking the boundaries of the geofence area, the Government’s application was denied a second time for being too broad.
In the Government’s third application, it removed the request for subscriber information based on device IDs altogether. It also limited information to only those persons who “committed or witnessed the violations.”
Again, the warrant was denied on constitutional grounds for not being specific enough about the place to be searched and the exact person being searched. In addition, the court was concerned Government could sidestep warrant requirements to obtain subscriber information other ways once they had the device ID information.
While the Government limited their request to only those who committed or witnessed the activity, it did not provide Google a way to identify such co-conspirators, accomplices, or witnesses. It also left too much choice to police to decide which device IDs would be subject to further requests for specific subscriber information. And the Government provided no evidence of each person’s involvement in a crime before attempting to seize their location data. The court ruled this a general search request rather than a specific request required of all search warrants. The court said warrants should not be “open-ended authorizations for public officials to rummage where they please in order to see what turns up.”
Always Challenge the Scope of a Geofence Warrant in a Federal Criminal Case
In any case where the Government is using data recovered form a geofence warrant, a defense lawyer should file a motion to suppress challenging the scope of the warrant as unconstitutionally broad. Given some recent cases, and attention from Congress on the use of these warrants, some judges may be reluctant to allow the Government to use evidence obtained from a geofence warrant. If information obtained from a geofence warrant is used in court without objection, or a person pleads guilty to a case were the evidence includes material from a geofence warrant, then any constitutional challenges to the warrant may be waived.
Always consult with an experienced federal defense lawyer in any case that involves geofence warrants or attempted searches of electronic devices or digital information.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.