Earlier this month, a federal judge in Virginia ruled that the surveillance tactics used to find an alleged bank robber were unconstitutional. Specifically, Judge M. Hannah Lauck of the Eastern District of Virginia pointed to the use of a “geo-fence warrant,” an increasingly popular tactic employed by law enforcement agencies around the country since at least 2016, as violating the protections guaranteed by the Fourth Amendment.
But what is a geo-fence warrant? Well, in the simplest terms, it’s a search warrant that allows law enforcement to obtain and use the geolocation data on mobile devices within a particular virtual perimeter.
Ok, so maybe that wasn’t the “simplest terms.” Simpler: it’s a warrant that allows the police to ask companies like Google where your device has been or where it’s at right now. Let’s say you were hiding a body last night. Or you were at the Burger King across the street from where someone was hiding the body. Your approximate location would be fair game – and even grounds for the initial suspicion to begin with – because the data police obtain could sweep up dozens of nearby devices, not just the one needle in the proverbial haystack they might be looking for.
Law enforcement agencies contend that access to a person’s geolocation data is a vital aspect of many of their investigations today. If a person suspected of criminal activity had their phone or digital device turned on while they committed a crime (and of course, if their phone was both logged into Google, and allowed Google to track their location), Google would have a record that can be traced directly back to them.
And that last caveat is what defenders of this dragnet policy say makes this debate moot. They argue that it’s not even clear that the government’s obtaining geolocation records is a Fourth Amendment search that requires a warrant in the first place because under the third-party doctrine, voluntary disclosure of information relinquishes a reasonable expectation of privacy. And as we all know, most people mindlessly accept the location tracking data without the intention of doing anything more than making sure their GPS works or they can track their Uber’s ETA, a point Judge Lauck noted.
Lauck stated in the court’s decision that “a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant.”
Lauck further stated that the suspect in the case before the court could not have a “meaningful sense” that using his cell phone also meant “turning over a comprehensive dossier of his physical movements” to the cops.
The use of geo-fence warrants has grown exponentially in the last 6 years, according to Google. The internet behemoth reported that it had received 982 geofence warrants in 2018, 8,396 in 2019, and a staggering 11,554 in 2020. In fact, 25% of data requests from law enforcement agencies – including federal – to Google were under the authority of geo-fence warrants. And while Google receives the bulk of these requests, other location data-gathering companies like the aforementioned Uber, Lyft, Apple, and more have also received the same “requests.”
While the recent decision in Virginia may slow down the use of these warrants – the case is the first real legal examination of the practice in federal court – the real solution lies in Congress. Congress needs to curtail or even ban the use of geo-fence warrants to protect the privacy of otherwise unsuspecting Americans who simply want to know what time their Chipotle will arrive.