5th Circuit nixes 'general, exploratory rummaging' of location data to find suspects
A federal appeals court’s decision Friday on the constitutionality of geofence warrants has “case-of-the-year importance,” according to a law professor’s blog post. (Image from Shutterstock)
A federal appeals court's decision Friday on the constitutionality of geofence warrants has “case-of-the-year importance,” according to a law professor's blog post.
The decision by the 5th U.S. Circuit Court of Appeals at New Orleans held that geofence warrants—which try to find a suspect through internet-device location history of everyone in the vicinity of a crime—are “categorically prohibited by the Fourth Amendment.”
The 5th Circuit nonetheless said police acted in good faith when they relied on the dragnet-type warrant to find suspects in a postal robbery, and the evidence obtained won’t be suppressed.
The Aug. 9 decision “raises questions of whether any digital warrants for online contents are constitutional,” according to a post at the Volokh Conspiracy by Orin S. Kerr, a professor at the University of California at Berkeley School of Law.
The decision had two holdings, Kerr said. The first is that law enforcement’s accessing of geofence records constitutes a search. The second is that the Fourth Amendment prevents courts from issuing geofence warrants because the database is so large, and it must be scanned in its entirety to find matches.
The search holding has “case-of-the-week importance,” while the the warrant holding has “case-of-the-year importance,” Kerr said.
The opinion should be a warning against a narrow reading of the Fourth Amendment in cases involving geofence warrants and other reverse warrants that don’t identify a particular suspect, the Electronic Frontier Foundation, a nonprofit digital rights group, said in an Aug. 12 press release.
The author of the 5th Circuit decision is Judge Carolyn Dineen King, an appointee of former President Jimmy Carter. She was joined by Judge James C. Ho and Judge Kurt D. Engelhardt, who were both appointed to the 5th Circuit by former President Donald Trump.
The appeals court ruled in the case of three defendants arrested for the robbery of a postal worker based on evidence developed through a geofence warrant.
During the investigation, a person who lived nearby told a postal inspector that he saw a red Hyundai circling the area before the crime, and he had asked the driver whether he was lost. But postal inspectors weren’t able to identify suspects by November 2018, nine months after the robbery, so they obtained a geofence warrant for Google’s location history records.
Google has an extensive database called the “Sensorvault” that has location data for users who opt in to its location history service, often in response to prompts by apps. At that point, Google collects location data of electronic devices associated with a user’s account every two minutes on average.
Google searches the Sensorvault’s 592 million accounts in response to geofence warrants, using a three-step process in which Google at first provides an anonymized list to law enforcement, which determines which IDs are relevant. In the third step, Google provides account-identifying information.
The first step list provided to postal inspectors had three anonymous device IDs within requested parameters. Inspectors received account information for two people and used it to develop more evidence. The witness who saw the red Hyundai identified Jamarr Smith as the driver in a photo lineup.
A geofence warrant fails at the first step, the appeals court said.
A geofence search happens “while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result,” King wrote. “Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient. Geofence warrants present the exact sort of ‘general, exploratory rummaging’ that the Fourth Amendment was designed to prevent.”
The Electronic Frontier Foundation praised the decision, while Kerr said it was “bananas” partly because it “seems hard to square” with U.S. Supreme Court precedent.
The 5th Circuit case, United States v. Smith, creates a circuit split.
The 4th Circuit at Richmond, Virginia, ruled July 9 in United States v. Chatrie that the government didn’t conduct a search within the meaning of the Fourth Amendment when it used geofence information to locate a suspected bank robber.
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