Geofencing Warrants Are a Threat to Privacy

[Kamaji]

Geofencing Warrants Are a Threat to Privacy

A precedent set in the January 6 prosecutions could be dangerous to the public.

BONNIE KRISTIAN
12.5.2022

The House committee investigating the events of January 6, 2021, is nearly finished with its work, and a jury convicted a key figure in the attack on the Capitol of seditious conspiracy this week. Nearly 900 other criminal prosecutions of alleged rioters remain underway, and one case has shed troubling new light on how the FBI investigated these defendants.

The suspect's name is David Rhine, and what makes his case unique, per Wired and Emptywheel, is his lawyer is the first to present a potentially successful challenge to the geofencing warrant the FBI used to place some defendants inside the Capitol building during the attack.

A previous Wired report last year found 45 federal criminal cases citing the warrant, which required Google to provide the FBI with data on devices using its location services inside a set geographic area—in this case, in or very near the Capitol. Rhine's case has revealed just how expansive the FBI's request to Google really was.

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And that gets us to what's troubling here: The Fourth Amendment requires search warrants to specify "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A geofencing warrant arguably allows law enforcement to work backward, to say, We think a crime was committed around this place and this time. Let's sweep up location data for everyone who was there and investigate them all.

Legal experts differ on the constitutionality of this approach, but it sounds remarkably like a general warrant: "one that 'specifie[s ] only an offense,' leaving 'to the discretion of executing officials the decision as to which persons should be arrested and which places should be searched.'" General warrants are exactly what the Fourth Amendment is intended to preclude.

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Beyond the constitutional objection, there's the abrogation of privacy for everyone who isn't guilty. A geofencing warrant gives the police a map of the movements of many innocent people's phones. That map is not certain to be accurate; it does not prove that the phone's owner was the one making those movements; and even with complete accuracy and certainty, there's no guarantee police will interpret the map correctly. In 2020, for example, geofence data including a Florida man's Runkeeper records got him wrongly accused of burglary. He avoided prosecution, but the ordeal cost him thousands of dollars.

Moreover, the innocence of the crime currently under investigation is no guarantee against some part of that movement catching an officer's eye: Well, he couldn't have done the murder because he wasn't close enough, but he did go to this other house for 10 minutes at 1 a.m., and weren't we thinking the guy who lives there is dealing?

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Source:  https://reason.com/2022/12/05/geofencing-warrants-are-a-threat-to-privacy/?itm_source=parsely-api