Warrants that often result in Google searching its voluminous user database are unconstitutional, a U.S. appeals court ruled on Aug. 12.
The geofence warrants violate the U.S. Constitution’s Fourth Amendment, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit said.
The amendment protects people against “unreasonable searches and seizures.”
Three people who robbed a U.S. Postal Service driver in 2018 sued because investigators turned to geofence warrants when they couldn’t identify any suspects. The people said they have a reasonable expectation of privacy when it concerns their digital data.
The warrants are based on crime scene locations and garner a list of phones and phone owners who were at or near the scene when the crime was committed.
Most geofence warrants are made to Google, and Google was presented with a warrant in the Postal Service case. Google, when presented with geofence warrants, has to search its entire database to find responsive records, which come from users who have agreed to share their location history.
When it searches its database, Google does conduct a search that implicates the Fourth Amendment, the appeals court panel said.
“Of particular concern is the fact that a geofence will retroactively track anyone with location history enabled, regardless of whether a particular individual is suspicious or moving within an area that is typically granted Fourth Amendment protection,” King said.
The Fifth Circuit panel, though, said a number of those users aren’t informed and that opting in may not even be voluntary.
“Users are bombarded multiple times with requests to opt in across multiple apps,” King said. “These requests typically innocuously promise app optimization, rather than reveal the fact that users’ locations will be comprehensively stored in a ‘Sensorvault,’ providing Google the means to access this data and share it with the government. Even Google’s own employees have indicated that deactivating Location History data based on Google’s ‘limited and partially hidden’ warnings is ‘difficult enough that people won’t figure it out.’”
King was joined by U.S. Circuit Judges James C. Ho and Kurt D. Engelhardt.
While the panel sided with the individuals, the decision also upheld a lower court ruling that rejected a motion to suppress the evidence that law enforcement officers obtained through the results from the geofence warrants.
The U.S. Supreme Court has ruled that there is a good-faith exception to the Fourth Amendment. Circumstances when the exception doesn’t apply include when a magistrate judge who approved the warrant abandons his judicial role and when the warrant “is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid.”
The robbers argued that the officers who sought the warrants offered conclusions that weren’t based on any probable cause, rendering the warrant facially deficient. But the panel disagreed.
“The inspectors were utilizing a cutting-edge investigative technique with which neither Inspector had personal experience. To that end, the inspectors diligently attempted to make sure that their warrant comported with the Fourth Amendment by communicating with other law enforcement agencies and the U.S. Attorney’s Office, and the inspectors exhibited no malicious intent through the actions that they took,” King said. “Thus, we cannot fault law enforcement’s actions considering the novelty of the technique and the dearth of court precedent to follow.”
