The Fifth Circuit Court of Appeals has ruled that geofence warrants, which allow law enforcement to obtain vast amounts of information about digital devices within a specific area, are unconstitutional under the Fourth Amendment’s protections against unreasonable searches and seizures. Despite being considered one of the most conservative appeals courts, with a reputation for tilting in favor of law enforcement over individual rights, the Fifth Circuit’s decision proved remarkably stunning.
The case, United States v. In 2018, a subset of Mississippi male inmates were arrested and charged with armed robbery. After months without viable suspects, police turned to innovative investigative tactics, securing a geofence warrant that pinpointed a specific time frame – a mere 60-minute window – in which the perpetrator was likely active at the crime scene. According to reports, Google shared its location data with authorities, which led to the arrest of two men whose phone records placed them at the scene around the time of the incident.
The EFF quotes the Fifth Circuit’s ruling, noting that it highlights the quintessential drawback with these warrants: their potential to “embrace a particular person to be recognized solely by a temporal and geographic location where any given person may happen to show up post-search.” The court deemed this approach constitutionally inadequate.
According to the court’s guidelines, law enforcement agencies are required to follow a specific protocol when executing a geofence warrant, which involves notifying Google in advance by providing details on the timeframe and location of the intended search. At that specific location and moment, Google aggregates vast amounts of anonymized information from devices communicating with it, combining data in the tens of millions. The second step involved police contextualising and focusing their inquiry by scrutinising the anonymised record and identifying specific details that required further investigation. The third step involves police requesting identification information from users regarding devices they have identified as being of greatest interest. During that era, Google provided users’ names and email addresses in conjunction with relevant device information.
Diverging from a recent Fourth Circuit decision that dismissed a comparable argument regarding geofence warrants, the newly issued ruling exhibits a distinct approach. In 2019, law enforcement agencies issued approximately 9,000 geofence requests, a significant surge of 2,500 requests compared to the previous year. As of 2021, nearly a quarter of all warrants served on Google were geofence warrants, as mandated by the relevant court decision.
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