Wondering if the police can track you because you were near the scene of a crime?
Curious as to the legal issues revolving around Google sharing information with the authorities?
Today I look at geofences, and how they can be used by police to get a warrant for your
smartphone location.
Hi, this is Professor Beau Baez.
Smartphones are ubiquitous, just like coffee shops and grocery stores.
Almost everyone has one, with numerous apps to make our lives easier.
Ask yourself, when was the last time you pulled out a paper map to find a location, or asked
a stranger to guide you to the nearest restaurant?
You've either never done this, or haven’t done it in years.
Instead, you pulled out your smartphone and you asked it to give you that information.
But did you know that Google and other companies keep track of that information, and will provide
that information to the police when they are required to do so by law?
Because our smartphones leave traces, let’s explore how and when the police can get a
warrant to force Google to provide your location to them.
A geofence is a geographic area around a specified location, with Google being able to pinpoint
a device within 20 meters, or about 65 feet.
In one case the police obtained a warrant ordering Google to provide them with the identity
of every device within 150 meters, or about 500 feet, of a bank robbery location
from 4:20 pm to 5:20 pm—this was during rush hour.
This request not only captured data from those at the bank, but also from devices at a restaurant,
two apartment complexes, a hotel, a mini-storage, and a large church across the street.
And how about the busy road right next to the bank.
The legal question I now want to discuss is the legality of the warrant ordering Google
to provide this information.
Before I go any further, let me note that Google has publicly stated that they will
follow the law, and to my knowledge, they have provided this kind of information only
when ordered to do so by a court of law.
One Google employee noted that they get nearly 200 warrants a week.
And I suspect that number will grow over time.
In the United States, police action is restrained by the 4th Amendment to the Constitution,
which reads: “The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
The writers of the U.S. Constitution were concerned with the abuses they experienced
by the British before the war of independence.
The concern animating the 4th amendment was the use of general warrants
by the British authorities.
The British would issue a general warrant, also called a writ of assistance,
to an official charged with enforcing the laws.
The warrant could then be used to search any place, anyone, at any time, without suspicion
of wrongdoing, and without payment for damages caused in the search.
The general warrant is viewed as a significant contributing cause to the American Revolution,
and the reason why the 4th Amendment has specific requirements as to when a warrant can be issued.
So in the United States, general warrants are unconstitutional and illegal.
This brings us back to our initial question: is a warrant ordering Google to provide geofence
information a general warrant, and therefore illegal.
Now if the government were to get names and addresses of all Google devices using geofence data,
that would likely violate the 4th Amendment because that looks a lot like a general warrant.
But the government has not been doing that.
Going back to the bank robbery case, the government requested the data in a manner that protected
the identities of the device owners.
Google provided anonymous ID numbers instead of names, along with the geofence data.
The police then looked at the data to reduce the number of potential suspects, eventually
zeroing in on the person they eventually arrested—they found evidence of the bank robbery at that
person’s home.
The government’s legal argument relies on an ambiguity in the 4th amendment itself:
is the 4th amendment primarily concerned with unreasonable searches or,
is it concerned with meeting the warrant requirement.
Chief Justice Rehnquist stated in Ohio v. Robinette that "The touchstone of the Fourth
Amendment is reasonableness.
Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.”
With this in mind, we now need to determine whether the police acted reasonably when using
the geofence data from Google.
What is clear is that the police were careful to avoid exposing all 19 individuals
to personal scrutiny.
Using only anonymous data they winnowed the potential suspects down,
eventually identifying the one bank robber.
So yes, what the police did was reasonable.
But at the same time, they did it through the use of a general warrant.
I suspect that when a geofence data case makes its way up to the Supreme Court, the decision
will be grounded in terms of reasonableness and not in terms of the warrant requirement.
This is because the Court is extremely concerned about privacy rights, which ultimately was
the problem with the general warrant.
So while the data of 19 individuals were initially searched,
they were searched anonymously and privately.
The government never identified, personally, who they were searching.
All they really knew was that a device owned by someone was at a particular location.
Only through more effort were the police able to identify the one device
that appeared to be that of the bank robber.
Do you have concerns over geofence data?
If so, share them in the comment section below.
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