Big Brother Surveillance

Recent court filings reveal that Google, by means of its Location History function that many Google users (often unknowingly) opt into, has tracked and recorded extensive location data for over 500 million people. Few of us are aware our location histories are being tracked and recorded in this way. Law enforcement agencies — state and federal — however, are keenly aware of it, and are making increasing use of this information to support criminal prosecutions by what are often called “geofence warrants.” Governmental use of geofence warrants has increased exponentially in the last several years...

These geofence warrants present a grave danger to Americans’ Fourth Amendment right to be protected from unreasonable searches and seizures. Moreover, as law enforcement agencies often employ the warrants in connection with large public protests or assemblies — the January 6 events, for example — the warrants also imperil Americans’ First Amendment rights of speech and assembly....

The Department of Justice’s use of geofence warrants in connection with its arrest and prosecution of David Rhine — one of the January 6 defendants — illustrates how a geofence warrant operates in practice. One week after the January 6 events, the DOJ sought and obtained a geofence warrant compelling Google to identify all mobile devices within the approximate four acre area surrounding and including the Capitol Building between 2 pm and 6 pm on January 6. The DOJ’s warrant application essentially relied on a “wrong place, wrong time, therefore likely guilty of a crime” ...

What is constitutionally objectionable about geofence warrants? The answer is simple: Geofence warrants satisfy neither the probable cause nor particularity requirements the Fourth Amendment demands. Geofence warrants fail these requirements because they closely resemble the general warrants (general warrants, in essence, describe a crime but lack individualized description of suspects who may have committed the crime) that have been condemned throughout American constitutional history....