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A foundation working on civil rights amid the explosive growth of computer data has revealed that a California court has thrown out a warrant police used to search for anyone in the area when a crime was committed in San Francisco.
The Electronic Frontier Foundation explains it’s the first court in California, often a bellwether for such precedents, to suppress the wide-ranging search procedures available through Google.
The report says while courts in other states also have expressed doubt about the constitutionality of the process, prior decisions in California have allowed the use.
In the case at hand, the ruling decided that a defendant in a 2018 burglary case actually “had a reasonable expectation of privacy in his locational data under [state law], the California Electronic Communications Privacy Act, which governs warrant requirements … accessing electronic information.”
The warrant didn’t satisfy the probable cause and particularity requirements of the Fourth Amendment.
The warrant covered the burgled home and “the entire street traveled by the suspect.”
“This deficiency in the warrant is critical because the geofence intruded upon a residential neighborhood and included, within the geofence, innocent people’s 13 homes who were not suspected to have any involvement in the burglary, either as a suspect, victim or witness.”
The court also ruled the warrant violated the Fourth Amendment “because it failed to require police to come back to the court for a new warrant at each step of the process, instead providing officers with unbridled discretion to determine who to target for further investigation. Ultimately, the court suppressed the evidence under CalECPA.”
The issue arose because police didn’t have a suspect in the burglary, so they “turned to” mass surveillance.
“Unlike traditional warrants for electronic records, a geofence warrant doesn’t start with a suspect or even an account; instead police request data on every device in a given geographic area during a designated time period, regardless of whether the device owner has any link at all to the crime under investigation. Google has said that for each warrant, it must search its entire database of users’ location history information. Geofence warrants are problematic because they allow police access to individuals’ sensitive location data that can reveal private information about people’s lives. Police have also used geofence warrants during public protests, threatening protesters’ free speech rights,” the EFF report said.
Google created a three-step process, first giving cops a list of de-identified device IDs, then narrowing that when police say which they want to review.
Eventually, police identify the devices they want, and “Google provides police those device IDs and full user account information.”
That information is precise, the report explained, allowing Google “to infer where a user has been, what they were doing at the time, and the path they took to get there. Google can even determine a user’s elevation and establish what floor of a building that user may have been on.”
But the court case also revealed there can be mistakes in the data, and the true offender may not even appear in the database as a suspect.
“EFF believes all geofence warrants, by their very nature, are unconstitutional general warrants,” and that the rule creates boundaries for future use, the organization said.
“Not only will San Francisco police now be required to ensure the scope of their warrants is extremely narrow, officers must go back to the court for a new warrant at each step of the geofence process. This is at least a step in the right direction.”
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