Geofence warrants: Government’s usurpation of digital privacy rights
The Supreme Court agreed last week to hear a case concerning the constitutionality of geofence warrants, a tool that allows law enforcement to usurp digital privacy rights and demand that companies turn over information on cellphones that were online at a given location during a specific time window.
The ruling, expected to be released in the spring or summer, carries serious Fourth Amendment repercussions (via The Hill):
In a brief order, the justices said they will review a defendant’s appeal that argues such warrants violate his Fourth Amendment protections against unreasonable searches.
Okello Chatrie pleaded guilty to robbing a credit union in the Richmond suburbs in 2019 and was sentenced to nearly 12 years in prison.
A detective had sought a geofence warrant from Google after seeing the suspect using a cellphone on security camera footage. A judge approved the warrant, and the company turned over anonymized location data for a two-hour period in the area of the credit union.
Google frequently was the subject of geofence warrants, as it maintained a database called Sensorvault that contained location data on millions of Android phones and users with Google apps on non-Android devices.
Google ultimately turned over subscriber information on three of the 19 people it possessed data on in the geofence. (Emphasis mine)
Of course, since government power and the destruction of liberty are at stake, Trump’s Department of Justice (DOJ) not only wants SCOTUS to reject Chatrie’s appeal, but they also want to protect the evidence obtained by the geofence warrant . . . even if it was obtained unconstitutionally.
The Justice Department asked the Supreme Court to turn away the appeal. It defended geofence warrants but noted Google has changed its internal data-storage policies and is unable to supply the information it did for Chatrie moving forward.
Solicitor General D. John Sauer also noted lower courts ruled the good-faith exception applied in Chatrie’s case. It allows evidence obtained unconstitutionally to be admitted in court if police had reasonably believed their actions were lawful.
“Indeed, review of that issue would be particularly inappropriate here, because a decision in petitioner’s favor on that issue alone would not be outcome-determinative,” Sauer wrote. (Emphasis mine)
The use of tools like geofence warrants to unconstitutionally obtain digital information isn’t new, just different, as we learned a few years ago when Big Brother developed the keyword warrant, a tool that makes it possible for law enforcement to spy on virtually everyone’s internet activity without their knowledge.
In December 2020, we learned that government spied on our internet usage in 2019 by tracking our website visits using Section 215 of the PATRIOT Act. Section 215 and other provisions of the PATRIOT Act were originally scheduled to expire on December 15, 2019, but in one of Washington’s classic year-end budget band-aids to avoid an imaginary government shutdown, a 90-day extension of the act was tucked inside a 2,000-page omnibus loaded with spending priorities that broke nearly every promise Trump and the Republican Party made in 2016.
As the new deadline of March 2020 approached, Trump and the Republican Party recommitted themselves to making government spying on internet usage permanent. That attempt failed, which allowed Section 215 and other key parts of the PATRIOT Act to expire. However, when the heat was off and no one was looking, the Senate reauthorized the USA FREEDOM Act on May 14, 2020, which extended the domestic surveillance powers contained in the PATRIOT Act. This reauthorization gave the FBI and other federal law enforcement agencies unlimited warrantless access to sensitive personal information, including internet browsing and search history, for national security investigations.
The USA FREEDOM Act originally became law in 2015 in response to Edward Snowden’s revelation about NSA spying; it was supposed to cut down on flagrant abuses of the PATRIOT Act by fixing the errors contained in Section 215 and prohibit bulk data collection.
Section 215 of the PATRIOT Act is where the NSA “found” its authority to gain access to “business records” and other “tangible things” deemed “relevant” to fighting terrorism, and using a broad interpretation of Section 215, the agency created justification for the abusive and unconstitutional spying revealed by Snowden.
Unfortunately, renewing the USA FREEDOM Act left Section 215 in force, which meant that authorities were still able to collect vast amounts of personal data, including internet browsing and search histories.
The loss of liberty via unreasonable search and seizure using programs like geofence and keyword warrants was clearly documented by Reason.com in October 2021:
We have surveillance fatigue. A lot of people just assume that everything they do online is immediately hoovered up and stored in some massive desert National Security Agency data center for eternity. It’s not a bad heuristic, but there are still some procedural hurdles for the feds to get their hands on what they want.
One of them was recently publicized in a series of court documents obtained by Forbes. It’s called a “keyword warrant,” and it’s basically an open request for information on anyone who searches for particular terms online. Instead of the government saying, “I want all of arson suspect John Doe’s Google searches,” it’s, “I want information on all the people who searched Google for ‘arson.'”
The problem is evident. In the first scenario, investigators have already determined a suspect based on some evidence that they present to a judge, the typical standard for requesting a search warrant. In the second scenario, the government is asking search engines to provide data that they can use for whatever reason. It’s an open invitation for a fishing expedition. And many innocent people could get caught in the net. (Emphasis mine)
In practice, geofence and keyword warrants can result in someone who has done nothing illegal being swept up in a government investigation based solely on that person’s internet activity or simply being in the wrong place at the wrong time. These anti-Fourth Amendment warrants are little more than fishing expeditions designed to make spying by law enforcement easier while simultaneously avoiding that pesky Constitution.
On the subject of how the federal government is violating our constitutional rights under the PATRIOT Act (the document where government spying got its legs), John Whitehead, founder of the Rutherford Institute, once wrote that “[it] violates at least six of the ten original amendments known as the Bill of Rights — the First, Fourth, Fifth, Sixth, Seventh and Eighth amendments — and possibly the Thirteenth and Fourteenth as well.”
If the use of geofence and keyword warrants by law enforcement teaches us anything, it’s that the Republican/Democrat duopoly in Washington will manipulate and pervert seemingly clear legal standards and rules concerning digital privacy for the benefit of the state . . . liberty and the Constitution be damned!
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties. He is the author of The New Axis of Evil: Exposing the Bipartisan War on Liberty.
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