Scaling the (Geo)Fence: New York Lawmakers Push to Outlaw Geofence Warrants amid Ongoing National Debate for Police Reform

In the wake of national protests against police brutality surrounding the death of George Floyd, and ongoing national debate for police reform, New York lawmakers have seized the opportunity to take a stand against law enforcement’s use of a controversial surveillance technique, known as the geofence warrant, or “reverse location search.”

For years, technology companies have responded to court orders for specific users’ information. But, in 2016, federal law enforcement used a new investigative method, the geofence warrant, to demand Google accounts, not of specific suspects of a crime, but from any mobile devices that veered close to the scene of a crime. Since then, the practice of geofence warrants or reverse location searches as investigatory tools has spread to local police departments nationwide, including in California, Florida, Minnesota, and Washington. Police have used the geofence tactic for serious cases like murder investigations, as well as nonviolent property crimes like burglaries.

In the context of a protest, for example, the use of geofencing would allow police to get information on every protestor located in the vicinity at the time a crime was committed during the protest through one single information request.

The idea is that rather than seeking a traditional warrant for a specific person or place, backed up with probable cause, police have been relying on the convenience afforded by geofencing, to sweep up information on any device that happened to be in the vicinity of a crime.

Law enforcement can achieve these searches in one of two ways: with or without a warrant. To obtain a geofence warrant, officers typically define an area of interest and a time period. The size of the area may vary. The amount of time covered by such warrants is also not uniform. Officers then submit a warrant request or affidavit for search warrant to the appropriate court for a judge’s approval. Notably, the police do not need a person’s name to get a judge to sign off on a geofence warrant. In a geofence warrant request from police in Virginia in 2019, the probable cause included that the suspect had a phone in his hand during a bank robbery. This was sufficient for the judge to grant the geofence warrant request, which led Google to hand over cellphone location data on 19 people from the requested time frame. A 2019 report from Minnesota Public Radio found that judges signed off on geofence warrant requests in as little as four minutes, sometimes without authorities ever explaining how many people would be caught up in the searches or how large the areas would be.

Law enforcement can also geofence without a warrant. This often involves law enforcement submitting a wide-ranging, voluntary data request to tech giants like Google and Facebook, which maintain location-tracking services for their customers, in order to collect location data where they have no clear leads or obvious suspects of a particular crime that occurred in a given location.

In some cases, geofence warrants have resulted in jail time for innocent people, but in others it has served as a tool without which law enforcement could not have solved a crime in the absence of viable leads.

Google, which gets a majority of these information requests because of its opt-in location history feature, has developed a process specifically for these requests that is designed to honor its legal obligations while also narrowing the scope of the data disclosed. Namely, Google has said it does not comply with such requests without a warrant. Nevertheless, privacy concerns persist regarding the practice of geofencing, as well as concerns over the compromise of constitutional protections.

There are no current federal or state laws that expressly prohibit or restrict this type of search or search warrant by law enforcement.

Thus, state officials and lawyers, hoping to capitalize on the ongoing momentum for police reform, have begun their own challenge to the legality of geofence warrants or reverse location searches as it relates to First and Fourth Amendment protections. Namely, New York Senator Zellnor Myrie and New York Assembly Member Dan Quart are leading the charge for legislative reform to prohibit the practice of reverse location searches in New York State.

In April of 2020, Sen. Myrie and Assemblymember Quart sponsored a Bill, proposing the “Reverse Location Search Prohibition Act” (S8183/A10246) (“Act”).

The stated purpose of the Act is to amend the New York Criminal Procedure Code to add an entirely new Article, Article 695, §§695.00-695.50, prohibiting the search, with or without a warrant, of the geolocation data of a group of people who are under no individual suspicion of having committed a crime, but rather are defined by having been at a location at a given time.

In his sponsor memo for the Bill, Sen. Myrie urges that this legislation is needed to protect the fundamental constitutional rights of Americans under the First Amendment, by outlawing reverse search warrants and requests. Sen. Myrie justifies that the legislation is needed to prevent law enforcement from collecting a “dangerous and unprecedented amount of information” through electronic device location tracking that can be used to surveil an entire neighborhood through a single warrant or request—information which stands to include details about a person’s movements, religious practices, political affiliations, and mental health.

Specifically, the Act would prevent a New York court from issuing, and prevent any police officer, peace officer, or prosecutor from seeking, “any court order, including a search warrant, compelling the disclosure of records or information pertaining to electronic devices or their users or owners, whose scope extends to an unknown number of electronic devices present in a given geographic area at a given time as measured via global positioning system coordinates, cell tower connectivity, and/or any other form of location detection.”

Further, the Act would prohibit New York Law enforcement from making any voluntary [information] requests directly to tech companies like Google, as an investigatory tool to collect location data from the devices of individuals located in a particular area, at a particular time.

The Act also provides a mechanism for criminal defendants to have any evidence obtained under a reverse location request suppressed or excluded, regardless of which court issued the order and regardless of whether the issuance of the order was permissible under the procedures of that court.

Finally, the Act affords a private right of action to any individual whose records were obtained by a law enforcement officer in violation of the proposed prohibition against geolocation searches. The individual may bring a civil action against the employing agency of the law enforcement officer for statutory damages in the amount of $1,000.00 per violation or actual damages, whichever is greater, punitive damages, and/or injunctive relief.

If passed, this legislation will be the only law in the country that prevents the geofencing and reverse location search practice. Markedly, Google has said it supports this legislation. The Bill is currently pending in the Senate Committee, Codes Committee as of the date of publication of this post. The most recent Codes Committee meeting was held on June 8, 2020.

The geofence practice has likewise sparked debate in U.S. federal court over two main issues: (1) whether a geofence warrant is tantamount to an unconstitutional “general warrant” that lacks the essential elements of probable cause and particularity in violation of the Fourth Amendment; and (2) whether a geofence warrant constitutes a Fourth Amendment Search under Carpenter v. United States. In Carpenter, the Majority of the Supreme Court ruled that access to at least seven days of a person’s cell-site records constitutes a Fourth Amendment prohibited search because it violates a person’s legitimate expectation of privacy in the record of his physical movements, and held individuals do not forfeit their reasonable expectation of privacy in their cell phone records when they disclose information to a third party. Carpenter, 138 S. Ct. 2206, 2212 (U.S. 2018).

The foregoing issues are currently being litigated by the parties in United States v. Chatrie, a 2019 federal case pending before the U.S. District Court for the Eastern District of Virginia. Google submitted an amicus brief in support of neither party in the case, to provide contextual information to the Court about the data at issue. The case presents the first known federal Fourth Amendment challenge against a geofence warrant by a criminal defendant in the United States. As with the pending legislation in New York, the stakes of this litigation are high in determining the fate of geofence warrants and reverse location searches, given that no federal or state laws currently prohibit or restrict these practices.

As we stand at the crucial sociopolitical juncture that is 2020 America, the large-scale demand for police reform by legislators, civil rights groups, and citizens alike, and the movement in both the federal judiciary and New York legislature regarding the practice of geofencing, means the coming months will be critical in defining, or perhaps re-defining, the future of Fourth Amendment jurisprudence and the scope of First Amendment protections in the United States.

As the ubiquitous Verizon Wireless phrase goes, U.S. lawmakers and citizens are dialing up to send the message: “Can you hear me now?”

For updates on developments in U.S. v. Chatrie and the status of the Reverse Location Search Prohibition Act, visit https://www.nacdl.org/Content/United-States-v-Chatrie,-No-3-19-cr-130-(E-D-Va-) and https://www.nysenate.gov/legislation/bills/2019/s8183

Source Links:

https://www.msspalert.com/cybersecurity-news/geofence-warrants-explained/

https://www.cnet.com/news/geofence-warrants-how-police-can-use-protesters-phones-against-them/

https://gdpr.report/news/2020/06/04/privacy-the-dea-has-been-given-immediate-authority-to-conduct-covert-surveillance-on-george-floyd-protesters/

https://www.wired.com/story/how-to-protest-safely-surveillance-digital-privacy/

https://legislation.nysenate.gov/pdf/bills/2019/s8183

https://www.nysenate.gov/legislation/bills/2019/s8183

https://www.lawfareblog.com/do-geofence-warrants-violate-fourth-amendment

https://www.law.cornell.edu/constitution/fourth_amendment

https://www.forbes.com/sites/andrewsolender/2020/06/04/51-have-been-arrested-for-federal-crimes-related-to-rioting-barr-says/#5ec3a194278c