Federal appeals court finds geofence warrants “categorically” unconstitutional

https://www.eff.org/deeplinks/2024/08/federal-appeals-court-finds-geofence-warrants-are-categorically-unconstitutional

by computerliker • 2 years ago

564 176 2 years ago

No reasonable expectation of privacy in one's Google location data - https://news.ycombinator.com/item?id=40958458 - July 2024 (163 comments)

londons_explore• 2 years ago

Wonder if this case will make google backtrack on their move to purge all location data from their users server-based location histories?

alistairSH• 2 years ago

So, the police can't use the cell tower, but they can use Google's location data, which is arguably higher quality anyway? I guess I'll take the small win, but I'd prefer the police don't have access to any type of blanket warrant.

kevin42• 2 years ago

One decision is by the fourth circuit, the other is the fifth. I don't know enough about the details, but in situations like this, the Supreme Court takes the case to resolve discrepancies.

fortran772• 2 years ago

They are a very effective tool for finding burglars.

That's how many burglaries are solved in my area. If the exact time of the burglary is known (from alarm or security camera) a very specific warrant is given for all phone activity at or near that time at that location.

I'm hoping if the warrent is more specific (perhaps finding similar burglaries and requesting information only for matches between the two locations) they can still be used.

idle_zealot3• 2 years ago

There are more important things than punishing petty theft.

fortran772• 2 years ago

Residential burglary is not petty theft. If the house isn't empty, a person could be seriously injured or killed.

giantg22• 2 years ago

I wonder if there can be nuance that if a person owns a private location, they can request the data for their property. This seems reasonable to me. The only people on the property should have permission and already be known to the owner. The ones who don't are trespassing and can be suspects for crimes committed during that time.

kardos• 2 years ago

You'd need geofencing of mobiles to be precise and accurate to about a meter for that to work. Is that the case?

ziddoap• 2 years ago

They are also quite effective at subjecting completely innocent people to criminal investigations.

deelowe4• 2 years ago

Exactly. Some people seem to have the opinion that a thing is good if it generally proves effective a capturing criminals. Others have the opinion that capturing criminals is only good if there's a very low risk of innocents being caught up in the process.

I'm in the latter group.

IncreasePosts• 2 years ago

That happens all the time during normal, legal place investigations. What's wrong with that? The concept of an investigation almost necessarily requires there to be innocent people involved, to differentiate the guilty from the innocent.

Noumenon72• 2 years ago

They never make these decisions with regard for the societal benefits of solving crime, they just ban policing and congratulate themselves on preventing bad policing. They could have narrowed this down to a new definition of probable cause rather than saying "See that terrorist on video using his GPS to plant bombs at the orphanage? Sorry, we can't find 'im."

bee_rider2• 2 years ago

We have a rule-of-law system in the US, at least that’s the ideal. The court shouldn’t be changing the laws to make policing easier. That’s what the legislative branch is for.

candiddevmike4• 2 years ago

Fix the root cause of why folks need to steal instead of invading everyone's privacy?

mc324• 2 years ago

I see this implication over and over (that poor hungry people steal). Poor people don't often steal. They might pilfer here and there, but they're not doing outright stealing or robbing. I've known poor people, I've lived with poor people and by and large they are not thieves. They may keep something, sneak something, but they are not breaking in and stealing stuff --if they do take things not theirs, it's "passive" (i.e. opportunistic.)

People who steal are often of two types, career criminals, pert of an organized (this can be peripheral) crime organization, or drugged out zombies who could not hold a job. There's a possible third, impulse theft by teenagers --these are low numbers.

It sticks in my craw when people so easily imply poor people steal and burgle. All the hand to mouth poor people who on occasion dumpster dove and all that, did not steal things, break into homes etc.

jonas21• 2 years ago

And what would that root cause be?

andrewla11• 2 years ago

If you can make it win-win for everyone involved, then sure, but there's no such thing as a free lunch.

Individuals have agency; they are not slaves of any "root cause". The individual decision of a person to burgle may have correlations to statistical characteristics of their situation, but unless we understand the base rate of that set of circumstances we will never be able to address it without restricting the agency of others in that cohort.

And the level of intrusiveness necessary to establish the cohort of individuals requires a degree of surveillance that is ripe for abuse and incompatible with personal liberty.

wonderwonder• 2 years ago

I feel for you but I'm hoping they are not. Look at they UK, that is where giving law enforcement this power leads. Citizens rounded up for protesting. "Show me everyone that was in the vicinity of the protest for x-y. UK even has a recent precedent where you are refused bail if you were just watching, you did not even have to participate.

https://web.archive.org/web/20240810105207/https://www.teleg...

xnyan• 2 years ago

That's how many burglaries are solved in my area

I'm interested by this, could you post some examples?

hed• 2 years ago

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.

That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.

cryptonector8• 2 years ago

It also makes it hard for the government to appeal the ruling, which then might just stand as precedent throughout the 5th circuit.

RetpolineDrama• 2 years ago

What utter nonsense on behalf of the courts. The "good faith" defense is irrelevant to the finding that a fundamental right was violated, and to deny the original defendant relief like this is just absurd.

cryptonector8• 2 years ago

This is a way for the courts not to get bad press. For the defendant at the time this is a terrible ending. For everyone else it's still nice. From a court's perspective this is a good compromise.

ARandomerDude• 2 years ago

Exactly. The fundamental assumption of the Bill of Rights is that governments do not operate in good faith. If they did, there would be no need to spell out how the government is not allowed to abuse you.

parineum3• 2 years ago

It's more complicated than that. All they really did was suspend the "fruit of the poison tree" doctrine.

The evidence gathered by the now ruled unconstitutional methods is not allowed to be used but the evidence gathered afterwards is still admissable where it normally would not be.

In this case, they can't use the geofence data of their locations as evidence but, after they used that to identify suspects, they can use all evidence gathered afterwards where that would normally not be allowed.

khuey• 2 years ago

Basically every noteworthy Fourth Amendment case works this way unfortunately.

andrewla11• 2 years ago

I am not a lawyer, but the language of the opinion [1] seems to indicate that the geofence itself is not admissible, but evidence obtained as a result of it is still admissible:

On November 4, 2022, Smith filed a Motion to Suppress— which the other Appellants joined—seeking to suppress all evidence derived from the November 2018 geofence warrant which was used to identify them as suspects.

They were identified as suspects, and further investigation produced more evidence, which formed the case. What they are saying is that the good faith exception prevents this from tainting all derived evidence in this case, which seems reasonable.

The good faith exception is an exception to the exclusionary rule, not to the admissibility of the evidence itself.

[1] https://www.ca5.uscourts.gov/opinions/pub/23/23-60321-CR0.pd...

flavius29663• 2 years ago

the opinion [1] seems to indicate that the geofence itself is not admissible, but evidence obtained as a result of it is still admissible

That means they can geofence to get a short list of suspects, and then file proper warrants for some of them if they have more clues?

bongodongobob3• 2 years ago

I don't see how that's reasonable.

"Well we kicked down the door to your house, which was wrong, but look at all this good evidence we got! I mean, c'mon, the guy is clearly guilty..."

OldSchool• 2 years ago

Was "Stop and Frisk" by the NYPD also in good faith for the decade or more that it took to get it declared unconstitutional?

refulgentis2• 2 years ago

That's why I love the law's ability to consider context: the structure protects what is right over the pedantic, here, letting a violent criminal skate 6 years later because of new thinking.

GeekyBear• 2 years ago

Relevant:

Good faith provides an exception to the Fourth Amendment exclusionary rule barring the use at trial of evidence obtained pursuant to an unlawful search and seizure. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is admissible under this exception.

https://www.law.cornell.edu/wex/good_faith_exception_to_excl...

It's unfortunate for the defendant, but does follow existing precedent.

MediumOwl• 2 years ago

That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.

Big Jean-Marc Bosman energy, who essentially changed the face of football (soccer) forever in the 90's because his club didn't want to let him leave, but he didn't play anymore all the trials.

Terr_2• 2 years ago

Even if practices so far have been unconstitutionally broad and sloppy, are there any scenarios where such a warrant for that kind of data could be valid?

For example, a small cottage in the woods is burned down with gasoline on a night the owner is absent. The police want to find the arsonist by asking for phones that connected to that tower that night, and there happen to be only 3 results, two of which are known neighbors. Still too broad?

In other words, should some of this hinge on the varying size/specificity of the result-set, rather than the query-parameters in isolation?

wordpad25• 2 years ago

I think maybe they will still use it, it's just not admissable as evidence in court

hwillis4• 2 years ago

https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree

Fruit of the poisonous trees is a doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained.

hwillis4• 2 years ago

A suspect runs into a garage with several unlocked cars, including yours. The suspect had drugs when he went into the garage and didn't when he came out. The drugs may be in any of the cars or none of them.

You would not get a search warrant in that case unless your car was the only one in the garage. The police don't know if there is three or even one phone connected to the tower in that time, and they should not get a warrant.

tantalor• 2 years ago

How far can probable cause stretch?

Can I say, "well it's probably in one of those 3 cars" so then I can get a warrant?

After the Boston Marathon bombing, they searched a 20-block area for the suspect (and found him). Was that legal?

deelowe4• 2 years ago

The police don't know if there is three or even one phone connected to the tower in that time.

Huh? The entire point the parent was making is that they do "know" which cell phones were connected during specific times.

crazygringo• 2 years ago

Wait, really?

If police say they have extremely good evidence to believe the drugs are in the garage, in the scenario you described, a court wouldn't issue a search warrant for the garage including any cars it contains?

I'm genuinely surprised. Is there a name for whatever legal principle prevents the court from doing so? I'd like to learn more about this.

Because from Wikipedia [1], I'd have assumed that this would be a cut-and-dried instance of probable cause [2]. Is it about the vehicle owners being different from the garage owner?

Edit: some quick googling seems to indicate that search warrants in the US can be issued to include all or specifically identified vehicles on a property, but no indication of what conditions need to be met.

[1] https://en.wikipedia.org/wiki/Search_warrant#United_States

[2] https://en.wikipedia.org/wiki/Probable_cause

Terr_2• 2 years ago

You would not get a search warrant [for several unlocked cars]

Hold up, you state that rather firmly but what's the reasoning that supports it?

What's the rationale that separates 1 car from "several" for probable cause?

____

I feel there's a risk of conflating:

1. Good reason to believe X is somehow involved a crime.

2. Probable cause to search for/inside something owned by X.

While there is a strong correlation between the answers to those two questions, they are definitely not the same.

KoolKat23• 2 years ago

A better analogy here, as some seem to struggle, would be the dealer goes into an apartment building and comes out empty handed, it could be in any of the apartments or none.

LorenPechtel• 2 years ago

Maybe that's the answer: Allow them to see how many. They can ask for a warrant for *the* device in the geofence, excluding a list of known devices. The phone company either returns the identity of exactly one device or returns no data.

dtgriscom• 2 years ago

Clarification: is this garage a public one, containing different owners' cars? Or is it a private three-car garage? (I think you're talking about the former, while many of your responders are assuming the latter.)

andrewla11• 2 years ago

From this decision is it doubtful that a judge would grant the warrant under any circumstances -- the knowledge, for example, that there are only three results, is only available after the warrant is executed. Since no warrant would be so granted, the data that only three results are found would never be discovered.

A judge could always choose to grant the warrant, but with full knowledge that any evidence uncovered will likely be inadmissible. Even if a judge grants such a warrant, it would likely be contested by the service provider (Google), and another judge would need to sign off on it, and likely an appelate court would have to deny certiorari in order. And even if it was allowed, at trial all of this would again be litigated with a fresh set of judges, and once again have to navigate up the apellate courts, and would most likely impair or cripple the prosecution of a case where it was used.

There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.

saghm2• 2 years ago

There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.

Is there a strong reason to assume one way or another about whether this will get reviewed by the Supreme Court (and if so, whether it would be upheld)? My understanding is that the Fifth Circuit has become a bit notorious in recent years for its rulings being a bit out of the norm and reviewed disproportionately by the Supreme Court, but I don't know enough about whether this decision might be one of those.

halJordan• 2 years ago

That's only really true in an exceptionally antagonistic environment.

If your house were burned down, and the police canvassed your neighbors do you expect your neighbors to stonewall the police or help you, by helping the police?

In the same scenario you would expect the tower owner to try and help solve that crime of their own volition. So knowing some of the requirements should be attainable in any civilized society.

fsckboy• 2 years ago

I'm pretty up on current events, but I did not know/recall what a geofence warrant is. It's the "what cellphones pinged here" search warrant:

A geofence warrant is a type of search warrant that allows law enforcement to collect location data from devices within a specific geographic area (the "geofence") during a particular time period. This warrant enables investigators to:

1. Identify devices present in the area

2. Collect location data, such as GPS coordinates or cell tower information

3. Link devices to specific locations and times

cryptonector8• 2 years ago

It's also "what devices Google saw in these areas at these times", which is much higher quality than cell tower triangulation.

ImaCake• 2 years ago

The article appears to be deliberately obfuscating the definition to keep the reader hooked for longer. The link to the article that describes a geofence is even more transparent about it.

xyst• 2 years ago

Can a FOIA request reveal if your phone has ever been included in one of these geofence warrants?

from-nibly• 2 years ago

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.

This single ruling, does nothing to make me feel any better about this. Everyone can be swept up in "some digital dragnet" because everyone's data is everywhere, and it's impossible to manage without hauling off to the woods and disconnecting from the internet at large.

cryptonector8• 2 years ago

This ruling is a huge step in the right direction. To gather all the data you speak of requires some entity (entities, really) -currently not the government- to gather it and then make it available for subpoenas and warrants, which would then fall [in the 5th circuit anyways, right now] under this precedent.

The government could get into the business of building [under cover] popular apps so as to gather that data themselves, but that would take a great deal of time and money, and most importantly competence!

sroussey• 2 years ago

Or just pay a data broker.

NegativeK• 2 years ago

As the sibling comment points out, the government doesn't need a subpoena if companies hand over the data willingly (typically for a fee.)

I can't see this being fixed until America decides that the rights to our identifying data can't be signed away.

walrushunter• 2 years ago

Is it really essential?

I don't feel like this ruling changes my chances of being falsely accused of a crime at all. All it really does is take away a tool police could use to find the right person.

zo1• 2 years ago

There is no reasoning with "privacy advocates" on this. Your argument is essentially "think of the children" to their ears and they're used to blocking it out categorically without thinking.

No amount of "checks and balances" and "valid scenarios" will convince them otherwise. They've decided that their arbitrary notion of privacy is some sort of "human right" and will drag us all to hell because of it. In the meantime, they refuse to participate with lawmakers to tread a middle-ground so the laws end up being utterly draconian (see the EU stuff happening in real time) against ordinary citizens.

Oh and don't even get me started on the kicker, whereby most of law-enforcement simply refuses to enforce and prosecute the bulk of uncomfortable crime they encounter (see the US and UK right now where they let criminals loose on their populace because they're afraid of the "optics").

I honestly don't know what kind of f-d up world we're leaving to our children. But they will judge us very harshly for it someday.

w10-12• 2 years ago

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

In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.

From the ruling emphasizes a search through the "entire" database as a kind of rummaging through everything in a house, but that's clearly inapt. First, it shouldn't matter whether Google just needs to check an index vs. doing a full scan. Second, there's no reason to assume a digital search has the same privacy implications as a house search. It's just assuming what you're trying to prove. `While the results of a geofence warrant may be narrowly tailored, the search itself is not` is relevant only if the search itself is an invasion of privacy.

So even (especially?) if I preferred the result in this case, that reasoning is not likely to hold up in a conflict with the 4th circuit. It's exactly this kind of weak conflict that gives the Supreme Court too much latitude to draw lines as they see fit.

edit: sorry, removed disrespect for the EFF

nvy2• 2 years ago

In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.

That's an absurd reduction, and not at all analogous to the situation discussed in TFA.

w10-12• 2 years ago

I agree the situations are different and this situation warrants privacy protection.

However, the court fails to articulate anything close to a workable rule in its reasoning.

Further, because the actual outcome was an upheld search d/t good faith reliance, the finding of unconstitutionality is basically dicta, and would/should be ignored by other districts and even in the same district.

I don't think this ruling offers the protections people want or should have. I think that point stands, however hidden by downvoting.

WarOnPrivacy• 2 years ago

In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.

No. Working with that analogy, this ruling indicates you can't get one warrant that applies to everyone in the book - simply because they are listed in the same geographic area.

A phone-book warrant would not be in harmony with the 4th Amendment.

creer2• 2 years ago

Does it mean that it would be constitutional if each tower kept its own log? Or then, if the database server collated a separate log for each tower as it went?

How would one-log-per-tower be different from a surveillance video tape?

Hmmm... elements of an answer: there is no doubt more in the decision but from the EFF writeup: (1) "individuals have a reasonable expectation of privacy in the location data", (2) "sensitive information about a person’s associations and allow police to “follow” them into private spaces", (3) "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.”"

So it sounds like one-log-per-tower would take care of the third point (the warrant would call for 1-4 specific towers or something), but the court still found an expectation of privacy in cell phone location, and an expectation that this sensitive private info might intrude of private spaces. As opposed to a video camera which views a public space.

gpm2• 2 years ago

In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.

Only if everyone in the phone book has a privacy interest requiring a warrant to breach in the fact that their name was in the phone book. They don't.

But imagine for a second they did. Then your search for "John" in the phone book would have involved flipping through the phone books pages looking for the "John" section, in the process violating the privacy rights of everyones names you looked at to figure out if you where before or after the Johns section. Of course that would be unconstitutional. It would be like trying to figure out where John lived by searching every apartment until you found the apartment with John's diary in it.

andrewla11• 2 years ago

Interesting tangent to this is that Google has recently announced that they are shutting down their "Timeline" service in favor of having that information stored locally on the user device. I wonder if this is a "do no evil" reaction to geofence warrants -- if Google does not have the information they cannot give it to law enforcement. This has been Google's practice in other situation (GDPR) where retaining information inherently exposes Google's customers to law enforcement violations of their privacy via Google itself.

weaksauce• 2 years ago

do no evil

google dropped that slogan a decade or more ago

andrewla11• 2 years ago

And remember ... don't be evil, and if you see something that you think isn't right -- speak up! [1]

[1] http://abc.xyz/investor/google-code-of-conduct

ikmckenz• 2 years ago

No, they didn’t. After corporate restructuring, parent company Alphabet uses a different cute slogan, while Google retains “don’t be evil” in their code of conduct.

whartung• 2 years ago

So, this is about taking a blind sample of an area to see if anyone is suspicious.

This is in contrast to having a named suspect, and then analyzing their phone data to see if they were in the area? That's still legit discovery?

jmyeet• 2 years ago

This is an interesting decision in historical context for several reasons.

First, the Fifth Circuit is conservative. It includes Texas, Louisianna and Alabama. It's become known as the fast-track to the Supreme Court as it has ruled very conservatively at both the district and appellate level. This problem is exacerbated by how the Fifth Circuit is organized where the districts in the circuit are divided into divisions of often 1-2 judges, allowing plaintiffs to very effectively "judge shop".

Second, in modern times the Fourth Amendment has been consistently weakened by successive Supreme Court. A notable example if the 1968 case Terry v. Ohio that allowed police to stop people and search them without probably cause. Another huge example if the whole concept of civil asset forfeiture, which was justified by (IMHO) the most contorted mental gymnastics: this pile of money has no rights. But it was found in someone's car. How is it not their property and thus the Fourth Amendment limitation on unlawful search and seizure should apply?

Third, the Supreme Court will likely take this case up now. Why? Because the Fourth and Fifth Circuits have issued conflicting rulings. That's when the Supreme Court steps in, more often than not.

Fourth, if a user's location data has a rasonable expectation of privacy, it raises the question of what other data has a reasonable expectation of privacy? What about law enforcemen tuse of Stingrays? Or facial recognition systems?

ckemere• 2 years ago

Naive question - how is geofence different than security camera footage of the street? It also includes indoor areas?

senorrib• 2 years ago

The footage only shows people that appear in front of the camera. The geofencing search touches data from everyone to the find people in a specific area.

gpm2• 2 years ago

As the court noted, geofence warrants require a provider, almost always Google, to search “the entirety” of its reserve of location data

I haven't read the ruling, but this has always struck me as the key problem with geofence warrants that courts have been ignoring. A geofence warrant doesn't just involve a search of the location data that is in the area, it involves a search of all the location data collected worldwide to determine that it wasn't in the area. It couldn't be less localized.

datahack• 2 years ago

This is fantastic. I’ve worked on this problem and it’s an incredible invasion of privacy.

However, until we get clarification from FISA courts we will still have to deal with it. The problem is the line where FISA has been used to acquire information for criminal prosecution rather than for intelligence purposes, and the broader and broader definition of terrorist and the dramatic expansion of domestic watchlists in recent times.

Let’s hope that it gets unilaterally outlawed and then FISA is forced to follow the supreme law of the land in future rulings.

creer2• 2 years ago

Interesting constrast with the Las Vegas room searches.

grahamjameson• 2 years ago

Perhaps someone has already commented this, but LE can still purchase data from data brokers circumventing need for a warrant. That’s not to say that this isn’t an important step in the right direction, rather it’s to point out that there is still work to be done.

yieldcrv• 2 years ago

Fifth Circuit being our only check and balance is amusing to me

But I can appreciate the distributed nature of this system

ggm• 2 years ago

The most important thing to remember reading this, for most of us (including myself) is the phrase:

  I Am Not A Lawyer

The construction of "but what does it mean" invites the response: "it depends". I wouldn't depend on a theory or statement from anyone not involved in the law here. I have no idea how this will or will not limit the use of geofence technology, warrented or otherwise.

dmvdoug• 2 years ago

And, now that there is a circuit split, this is squarely teed up for the Supreme Court, and there’s really no telling how they’ll come out.

hnburnsy• 2 years ago

Cities are already building their own tracking networks with APLR, Bluetooth, TPMS, toll transponders, etc.

I would imagine someday, police will say geofence every radio detected by a their (or third parties) sensors network and then drive around looking for those radios, or wait until they pass one of their detectors again.

user3939382• 2 years ago

I like how they take 15 years to work these issues through the courts, meanwhile untold thousands of people have their rights violated.

kylehotchkiss• 2 years ago

This is encouraging especially as an increasing number of our watches and cars have cellular chips in them. It’s not like you can just hid your phone in a silent pocket and be excluded from these anymore.

dsq• 2 years ago

This is especially problematic as a bad actor will turn off or leave their phone at home, then go perform the crime. Since it is human to be lazy, the investigators may just go for the devices they drag into the net, leaving the real perp untouched.

Federal appeals court finds geofence warrants “categorically” unconstitutional

Related Stories