Federal Appeals Court Finds Geofence Warrants Are 'Categorically' Unconstitutional (eff.org) 41
An anonymous reader quotes a report from the Electronic Frontier Foundation (EFF): In a major decision on Friday, the federal Fifth Circuit Court of Appeals held (PDF) that geofence warrants are "categorically prohibited by the Fourth Amendment." Closely following arguments EFF has made in a number of cases, the court found that geofence warrants constitute the sort of "general, exploratory rummaging" that the drafters of the Fourth Amendment intended to outlaw. EFF applauds this decision because it is essential that every person feels like they can simply take their cell phone out into the world without the fear that they might end up a criminal suspect because their location data was swept up in open-ended digital dragnet. The new Fifth Circuit case, United States v. Smith, involved an armed robbery and assault of a US Postal Service worker at a post office in Mississippi in 2018. After several months of investigation, police had no identifiable suspects, so they obtained a geofence warrant covering a large geographic area around the post office for the hour surrounding the crime. Google responded to the warrant with information on several devices, ultimately leading police to the two defendants.
On appeal, the Fifth Circuit reached several important holdings. First, it determined that under the Supreme Court's landmark ruling in Carpenter v. United States, individuals have a reasonable expectation of privacy in the location data implicated by geofence warrants. As a result, the court broke from the Fourth Circuit's deeply flawed decision last month in United States v. Chatrie, noting that although geofence warrants can be more "limited temporally" than the data sought in Carpenter, geofence location data is still highly invasive because it can expose sensitive information about a person's associations and allow police to "follow" them into private spaces. Second, the court found that even though investigators seek warrants for geofence location data, these searches are inherently unconstitutional. As the court noted, geofence warrants require a provider, almost always Google, to search "the entirety" of its reserve of location data "while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result." Therefore, "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."
Unsurprisingly, however, the court found that in 2018, police could have relied on such a warrant in "good faith," because geofence technology was novel, and police reached out to other agencies with more experience for guidance. This means that the evidence they obtained will not be suppressed in this case.
On appeal, the Fifth Circuit reached several important holdings. First, it determined that under the Supreme Court's landmark ruling in Carpenter v. United States, individuals have a reasonable expectation of privacy in the location data implicated by geofence warrants. As a result, the court broke from the Fourth Circuit's deeply flawed decision last month in United States v. Chatrie, noting that although geofence warrants can be more "limited temporally" than the data sought in Carpenter, geofence location data is still highly invasive because it can expose sensitive information about a person's associations and allow police to "follow" them into private spaces. Second, the court found that even though investigators seek warrants for geofence location data, these searches are inherently unconstitutional. As the court noted, geofence warrants require a provider, almost always Google, to search "the entirety" of its reserve of location data "while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result." Therefore, "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."
Unsurprisingly, however, the court found that in 2018, police could have relied on such a warrant in "good faith," because geofence technology was novel, and police reached out to other agencies with more experience for guidance. This means that the evidence they obtained will not be suppressed in this case.
taking one for the team (Score:2)
Talk about taking one for the team. What we did was wrong, but we could not have known better somehow, so too bad for you.
Re: (Score:1)
Nowadays, especially with Loper Bright in place, the executive branch is pretty well handcuffed to an absolutely literal reading of the law, and I'm sure that the words "geofence warrant" appear absolutely nowhere in current federal law.
I'm actually in favor of allowing law enforcement to do this sort of thing, but my opinion is irrelevant. Even the supreme court would have a hard time allowing this given that they
Re:taking one for the team (Score:4, Insightful)
Actually, it was never legal because the 4th Amendment was enacted centuries ago. The understanding wasn't there, so the police shouldn't face any sort of prosecution for it, but it was never legal.
The whole thing about allowing it under "good faith" is itself a bad faith argument intended to allow an illegal thing to happen.
It's a little hard to be too broken up about armed robbers getting arrested, but the law is supposed to be the law.
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The ones who "took one for the team" were the people who were innocently in the area and might have been accidentally arrested (hello Richard Jewell [wikipedia.org]). We have constitutional protections to prevent that.
If law enforcement were perfect, and never 'accidentally' caught innocent people, then it would make sense to give them whatever power th
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The ends cannot justify the means.
Re: taking one for the team (Score:1)
Re: taking one for the team (Score:5, Insightful)
> Federal Appeals Court Finds Geofence Warrants Are 'Categorically' Unconstitutional
> They committed the crime, they should do the time, etc.
If the only way they got caught was by unconstitutional means then you are saying that the ends (prosecuting them) justifies the means (illegal dragnet).
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Following your logic, Lee Harvey Oswald would have been set free because police didn't inform him of his Miranda rights, which were codified six years later.
Technology changes, police procedures evolve, and courts clarify freedoms and limitations of laws. As stated in the summary:
[A warrant was properly requested therefor] the court found that in 2018, police could have relied on such a warrant in "good faith," because geofence technology was novel, and police reached out to other agencies with more experience for guidance. This means that the evidence they obtained will not be suppressed in this case.
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Following your logic, Lee Harvey Oswald would have been set free because police didn't inform him of his Miranda rights
You can absolutely be arrested without being read your Miranda rights, and this happens all the time. In fact, I truly wonder if ANYONE that's arrested is read their Miranda rights, like they did in the 80s movies.
Miranda rights are only required to be read to someone that's about to be questioned about a crime. This is why the very first sentence of the Miranda rights are, "You have the right to remain silent." Then you're reminded that "Anything that you say can, AND WILL, be used against you in a cour
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You don't need to be read your Miranda rights on arrest. You need to be informed of your Miranda rights before police question you, which is different.
Remember, you're 'arrested' the moment you're not at liberty to turn around and walk away from an officer; no handcuffs of statement of 'you're under arrest' is required.
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Re: taking one for the team (Score:2)
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> "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."
The warrants were never proper to begin with. Being against government overreach is not the same as supporting crime. This kind of over broad search has never been legal, even when done "on a computer with data".
Re: taking one for the team (Score:2)
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Right, but police very often will take the attitude that they caught the bad guy, so why is everyone whining that they skirted rules? Police must be held to a high standard here - if police are allowed to break rules then that just encourages crime. It's better to have a few criminals end up going free than to erode out liberties.
Next step, SCOTUS (Score:5, Informative)
Since the 4th and 5th circuits came to different conclusions regarding geofence warrants this will end up at the Supreme Court to resolve (circuit split cases are commonly accepted).
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They need to make sure this ruling applies... (Score:2)
They need to make sure this ruling applies to the FISA court as well.
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Comparison (Score:2)
How is this different than obtaining security camera footage from a specific place and time?
Is it because the device and/or the data belong to the suspect? (I'm not sure they do, though.)
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2 reasons. 1. The camera's useful view area is MUCH smaller. 2. Just being seen in the picture isn't enough to be treated as probable cause. They'd have to at least see a person somewhere they are not authorized to be, or in a public space they'd have to be seen committing a crime, not merely present. Location data on a phone says nothing about what you were doing and isn't accurate enough to decide if you were inside or outside of a restricted area.
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>"How is this different than obtaining security camera footage from a specific place and time?"
With camera footage, one is not searching peoples' records from a third party. Authorities are going to a business or residence, and asking them to see footage THEY collected on THEIR equipment on/around THEIR property. Plus THEY have an vested interest in the outcome. It isn't a blanket dragnet across zillions of people by a disinterested other entity.
oh great (Score:1)
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Law enforcement can no longer demand free access to Google's records. They will have to pay for it, like everyone else.
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Law enforcement can no longer demand free access to Google's records. They will have to pay for it, like everyone else.
My Kingdom for Mod Points...
It's the same way with banks. US Government can't order the banks to turn over financial information. It can BUY that information per a rate schedule.
but public cameras are okay? (Score:2)
why do they have a problem with dragnet searching public security camera feeds but not phone locations?
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why do they have a problem with dragnet searching public security camera feeds but not phone locations?
Courts rule on the issue before them.
File a case that addresses the other issues you are concerned about, and you may get a ruling.
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You give yourself the answer; 'public.'
Re:Punish Cops? (Score:5, Interesting)
Is the purpose of the exclusionary law really to "punish" or at least deter police misconduct? Are we really turning vicious criminals loose on the public just in order to prove a point to the police?
"Just" to prove a point to the police? That is drastically important.
While I certainly understand that is part of the effect, I thought the idea was to protect our rights
You can't protect our rights without deterring police misconduct. You can't deter police misconduct by rewarding them for violating our rights.
Whether the police knew what they were doing was unconstitutional is irrelevant.
Intent is always relevant.
Its the evidence that is illegal, not the cops.
It's interesting you say that, because the next thing I was going to say is that we should get rid of or at least severely limit qualified immunity, and actually try cops in court when they violate our rights. "I was following orders" should never be a free pass; "I thought I was doing the right thing" is bullshit when ignorance of the law is no excuse for The People but it is a get out of jail card for the police. And study after study has shown that the cops do not know the laws they are hired to enforce, so I also propose that we increase the amount of school you need to become a cop in this country to more than just community college.
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Whether the police knew what they were doing was unconstitutional is irrelevant.
You mean "mens rea", one of the cornerstones of the entire justice system is irrelevant?
Unconstitutional (Score:2)