Geofencing Warrants have gained traction, but they are a threat to privacy, and there is no guarantee that authorities will interpret them correctly.
The work of the House committee looking into the events of January 6, 2021 is almost complete, and this week a jury found a key participant in the Capitol attack guilty of seditious conspiracy. Nearly 900 further criminal cases involving alleged rioters are still pending, and one of them has revealed unsettling new information about how the FBI looked into these defendants.
According to Wired and Emptywheel, David Rhine is the suspect, and what distinguishes his case from others is that his attorney is the first to potentially succeed in challenging the geofencing warrant that the FBI used to locate some of the defendants inside the Capitol building during the attack.
The warrant, which ordered Google to give the FBI information on devices using its location services inside a specific geographic area—in this case, at or very close to the Capitol—was the subject of 45 federal criminal proceedings, according to a prior Wired report from the previous year. How extensive the FBI’s request to Google actually was has been made clear by the Rhine case.
Google first reported 5,723 devices in response to the search warrant, but it later reduced the number to remove people who were “entirely within the geofence, to about a 70% probability” as well as potential Capitol staff and police. The FBI received a final list of 1,535 names and other identifying information. People whose phones were off or in aeroplane mode, as well as “people who attempted to delete their location data following the attacks were singled out by the FBI for greater scrutiny”.
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In about 50 cases, Wired notes, “geofence data seems to have provided the initial identification of suspected rioters.” Although Rhine technically isn’t one of them—the FBI received a tip that he had attended the attack—agents were only able to locate security footage of him inside the structure because to the geofencing request.
That brings us to the complicated situation in this: A search warrant must include “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” according to the Fourth Amendment. Law enforcement might perhaps use a geofencing warrant to go back in time and declare, “We believe a crime was committed around this location and this time.” Gather location information for everyone who attended, then look into everyone.
Although legal experts disagree on whether this strategy is constitutional, it sounds strikingly like a general warrant: “one that’specifie[s] only an offence,’ leaving ‘to the discretion of executing officials the decision as to which persons should be arrested and which places should be searched.'” Exactly what the Fourth Amendment is meant to prohibit are general warrants.
It’s simple to imagine situations in which a geofence warrant might direct authorities directly to the guilty party without causing any collateral damage. If a geofencing warrant reveals one other person on the property at that time and you are murdered alone in your home at the heart of your 50 undeveloped acres at 2 a.m., then yes, there is a good (though not absolute) likelihood that person is the murderer.
However, as the Capitol incidents demonstrate, that is by far means the only situation in which a geofencing warrant might be used. Once you take into account a scenario in where there are more people inside the fence, the concerns become clear.
Beyond the constitutional concern, there is the violation of everyone’s right to privacy. The authorities have a map of the travels of numerous innocent people’s phones thanks to a geofencing warrant. Even if the map were 100% accurate and certain, there is no guarantee that authorities will interpret it correctly. It also does not establish that the phone’s owner was the one moving those objects. For instance, a Florida man was falsely charged with breaking and entering in 2020 because to geofence data that included his Runkeeper records. Although he was not prosecuted, the incident cost him thousands of dollars.
Moreover, the innocence of the crime currently under investigation is no guarantee against some part of that movement catching an officer’s eye: He couldn’t have committed the murder since he wasn’t close enough, but he did spend 10 minutes at this other residence at 1 in the morning, and weren’t we assuming the resident there was involved in drug dealing?
It’s also simple to imagine the typical surveillance mission creep happening to geofencing warrants. According to American University law professor Andrew Ferguson, unless a challenge like Rhine’s is successful, the “January 6 cases are going to be used to build a doctrine that will essentially enable police to find almost anyone with a cellphone or a smart device in ways that we, as a society, haven’t quite grasped yet.” If left unchecked, law enforcement might determine that geofence data would be useful while searching for a journalist’s source for a tip-off article or perhaps at public demonstrations.
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) used at least a dozen geofencing warrants to do that in the summer of 2020 in Kenosha, Wisconsin. It is improbable that the warrants’ stated goal of finding those guilty for the estimated $50 million in damage from looting and rioting did not also include gathering the identities of peaceful protestors, let alone locals and business owners who were not involved in the unrest. For future protests, perhaps participants will leave their phones at home, or perhaps they won’t go at all.
Despite being relatively new, law enforcement’s usage of geofence data has exploded in recent years: “Between 2017 and 2018, the number of geofence warrants issued to Google increased by more than 1,500%; between 2018 and 2019, by another 500%.” Last July, Google claimed that a quarter of all legal requests it receives are related to geofencing orders.
Without judicial restraint, that trend will continue, and the January 6 cases—which have a way of upsetting conventional political alignments on criminal justice issues—could establish a significant precedent on this issue. But it’s still unclear if it sets a sound precedent.