I. So What the Heck is a Geo-Fence Warrant?
Well, to answer the first question is simple, a Geo-Fence Warrant is the opposite of a warrant to get specific data from a particular google account or device. A Geo-Fence Warrant is a request from a law enforcement agency sent to companies like Google or Apple demanding a list of accounts on file that were active in a geographic area at a particular time. Basically, companies like Google have data stored on their servers that could show what devices were being used near, let’s say, a homicide crime scene, at a particular time of day.
This is particularly useful for law enforcement in cases where they really have no suspects or witnesses to the crime. The legal investigation version of a Hail Mary pass, the Geo-Fence warrant has the potential to give law enforcement a lead that could kick start further investigation. It also has the potential to rope in people who had nothing to do with the crime, whose data had been provided to law enforcement by Google without any bit of evidence suggesting that they were involved in anything.
II. But Wait, I Have Rights!
Wait a minute though, isn’t there some sort of document, possibly with a bunch of Amendments, that talks about search and seizure? Why yes, that would be the Constitution, specifically the Fourth Amendment. Under the Fourth Amendment, Police need to have probable cause, or in lay man’s terms, a well-grounded suspicion, before they are granted a warrant. In other words, they need a well-grounded suspicion that someone may be involved in a crime and that the place they are going to search may have evidence of said crime before they go poking around in someone’s property, or in this case, someone’s data.
This seems problematic for the Geo-Fence Warrant considering law enforcement are asking Google to give them personal data on a whole swath of people, most if not all of which, have nothing to do with the crime being investigated. The law has been split on this issue, generally allowing these types of warrants, but limiting them in scope. In United States v. Chatrie, the U.S. Fourth Circuit Court of Appeals has taken up a Constitutional challenge to the Geo-Fence Warrant.[1] While this decision will only affect States from Maryland to West Virginia, down to South Carolina, it opens the door to the U.S. Supreme Court taking up the case. While these legal challenges are still pending, Google has already made the issue somewhat moot by removing its own ability to recover the location history sought after by the Geo-Fence warrants.
III. Why Google, Why?
So why does Google care about these Geo-Fence Warrants enough to make sure they can no longer access your location history on their own servers (at least in the long term)? Well once law enforcement realized the potential value of these warrants, they started using them, a lot. In 2021 Google reported that from the end of 2018 to the end of 2019 Geo-Fence warrant requests had tripled to over 3000 in a single quarter, with Geo-Fence warrants contributing to over 25% of the warrant requests Google received at that time.[2]
IV. So Why Should I Care and What Now?
I guess the best lawyer answer as to why you should care is: “it depends.” What is more important to you, someone’s privacy or solving crimes? Maybe solving crime is worth the intrusion, heck a majority of people who’s location history was taken by a Geo-Fence Warrant never even know it happened. Maybe letting police snoop around in random citizen’s information for a Hail Mary pass to try to find a suspect is to much of a slippery slope towards a police state. Or maybe the answer is somewhere in the middle; a sliding scale, where the more serious the crime the more justified it would be to poke around in someone’s location history without any evidence against them personally. Well, now we will never be able to let a Court answer this question, whether it be an outright prohibition or, more likely, a legal compromise balancing our civil liberties against a societal interest to solve serious crimes. Google has largely made that decision for us.
Now, Google is not the only company that can be served with a Geo-Fence warrant, but given the amount of data the company stores on its customers; practically all Geo-Fence warrants went to the tech giant.[3] Other companies, like Apple, already had their location data stored in a way that made it impossible for the company to recover it and therefore, immune to the Geo-Fence warrant. Law Enforcement, however, are not without some viable alternatives. Historical data from cell phone towers can provide a list of all cell phones that connected to that tower during a specific time frame. While this location history is certainly not as geographically accurate as a Google location history, the connection area of a cell phone tower can certainly narrow down a general location. However, this data is only retained for a short period of time, some as short as seven and thirty days like Verizon and T-Mobile, while others holding the data for a year like AT&T.
Louis A. Casadia, Esq. is the owner and operator of LACE LAW, LLC a Criminal Trial Defense Firm located in Hammonton, Atlantic County, NJ. Louis is a former prosecutor having worked in Burlington County, NJ for three years and Atlantic County, NJ for four. Louis handles Criminal Felony Defense, Municipal Defense, Traffic and DWI Defense, Juvenile Delinquency and Waiver matters, Firearm Appeals, Expungements, Casino Crimes, Restraining Orders, and more. Louis practices primarily out of South Jersey in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Ocean, and Mercer Counties.