GEOFENCING WARRANTS

 

Our lives are increasingly being surveilled by law enforcement. From facial recognition software to license plate readers and so many other technological systems you have probably never heard of, law enforcement can track a person’s almost every move. While most individuals are not being actively and personally surveilled and tracked by the police, anyone who becomes a target for investigation or triggers an investigation due to one of the many technologies law enforcement deploys, can find themselves in a personal dystopian nightmare.

That is what happened to one young man in Florida. Google informed this young man that the local police had demanded the data from his Google account. He had only seven days to oppose the release of the data. He had no idea why the police would demand his personal Google information. After some investigation of his own, he learned that the police wanted his data in connection with a burglary near his home. Knowing he had nothing to do with this burglary, and not understanding why the police apparently connected him to it, he borrowed money from his parents to hire an attorney.

The attorney learned that the demand was in connection to a “geofence warrant.” You have probably never heard of this type of warrant, but law enforcement agencies are ramping up the use of geofencing in their investigations. A geofence warrant allows law enforcement to compel a technology company to provide anonymized location records for every device used within a certain geographical location within a certain time period. So far, the only geofence warrants have been on Google data users, but the warrants can be applied to any cell phone or other GPS provider.

So, for example, if a robbery occurred on the 201 Fourth Street at 3:00 on January 5^th, the police could compel all location records for every device that was used within a square block of 201 Fourth Street between the hours of 2:00 and 4:00 on January 5^th.  The records do not reveal the identifying information of the users. So far, so good. That doesn’t sound unreasonable.

But here’s where it can get scary. Once law enforcement receives the records, the law enforcement agency scans the data for “hits” that look suspicious. If a particular users data looks suspicious to the police, they will go back to the technology company and demand the users identifying information or other information that will allow law enforcement to identify the user.

Back to the young man in Florida. Turns out he was a cyclist who took frequent bike rides around his neighborhood. He also used an exercise app on his phone that tracked movements in order to feedback relevant information regarding miles completed and so on. This data was captured by Google through his Android phone and triggered police suspicion that he was the burglar they were looking for. He wasn’t. But it took filing a motion in court to block the release of his identifying information. This ordeal not only cost him money and time, but needless worry and stress.

Unlike traditional warrants that identify a suspect in advance of the issuance of a warrant, a geofence warrant is a wide net cast by law enforcement that works backwards. It allows the police to capture data and go back in time to identify a suspect. There are many questions as to whether this is a lawful search under the Fourth Amendment. Because the technology is relatively new, that particular question has not been resolved. However, there is a challenge to the constitutionality of geofencing in the federal district court (E.D. Virginia). Eventually this issue is likely to wind its way to the United Supreme Court.

Anyone who is arrested for a crime who was initially identified by geofencing or other technology that implicates a violation of the Fourth Amendment can, and should, challenge the arrest by a motion to suppress. Orange County criminal defense attorney William Weinberg is available to assist in this process. He has over 25 years’ experience challenging police practices that violate his clients’ rights. You may contact his by calling 949-474-8008 or by emailing him at bill@williamweinberg.com.