Geofence Warrants: Is Supreme Court about to deny digital privacy rights?
In a case carrying serious Fourth Amendment repercussions, the Supreme Court appears inclined to begin chipping away at digital privacy rights by allowing police to use geofence warrants — a tool that empowers law enforcement to demand that companies turn over cellphone information of people who were online at a given location during a specific time by erecting a virtual perimeter around a specific location and technology companies.
While the so-called conservative justices appeared divided on what the Constitution requires for law enforcement to access location data, they appeared to be leaning in the direction of allowing police to continue the practice (via Politico.com):
A majority of the court appeared likely to conclude that law enforcement agencies should almost always need a warrant to obtain records that help them figure out who was at a particular place at a specific time.
However, after two hours of argument, it was unclear whether the justices will go further and lay out detailed criteria for so-called geofence search warrants or avoid a ruling that would create specific rules.
There was no discussion during the arguments about the extensive use of geofence warrants during the investigation into the Capitol Riot on Jan. 6, 2021, although there was mention that the Trump administration’s stance would allow authorities to collect information on attendance at political rallies or demonstrations without obtaining a warrant.
A decision is expected by the end of June. (Emphasis mine)
The case before the justices was brought by Okello Chatrie, who was charged in a 2019 bank robbery in Midlothian, Virginia, after being identified through a geofence warrant local police served on Google. Chatrie pleaded guilty to the robbery and was sentenced to nearly 12 years in prison. However, the question of unreasonable search and seizure remained.
A detective had sought the geofence warrant from Google after seeing Chatrie using a cellphone on security camera footage. A judge approved the warrant, and Google turned over anonymized location data for a two-hour period in the area of the credit union. Google ultimately turned over subscriber information on three of the 19 people it possessed data on in the geofence.
As mentioned above, Trump’s Department of Justice (DOJ) defended the use of geofence warrants. When the case was first accepted by SCOTUS, the DOJ asked them to not only reject Chatrie’s claim that his Fourth Amendment rights had been violated, but they also sought to protect the evidence obtained by the geofence warrant . . . even if it was obtained unconstitutionally.
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 our benevolent overlords developed the keyword warrant, a tool that makes it possible for law enforcement to spy on virtually everyone’s internet activity without their knowledge.
A keyword warrant is basically an open-ended 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 says, “I want information on all the people who searched Google for ‘arson.'” In the first scenario, investigators have 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 that suits its purpose.
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.
Unfortunately, renewing the USA FREEDOM Act also 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.
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 Edward Snowden.
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 for 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. And if the Supreme Court decides in favor of law enforcement, liberty and the Constitution will 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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