Everyone carries cellphones these days, which is why police have to get a warrant both to look through a suspect’s cellphone or to track a suspect with their phone’s GPS. But now police are obtaining geofence warrants to find all cellphones in a given area and then using that information to narrow down their list of suspects, a practice that has privacy advocates, lawyers and lawmakers all concerned.
What is a Geofence Warrant?
When police want to find out who was in a given area at the specific time a crime took place, they can request a warrant to subpoena data from a tech company such as Apple or Google to get a list of cellphones that were there at the specific date and time. While the data is anonymous, once the police obtain more information to narrow down the device users who may be involved with the crime, they can issue a warrant requesting more information on a specific device, such as the email address or name of a person who uses the device.
How Common is the Practice?
In a recent article on geofence warrants, Wired notes that the practice is becoming more and more common, with Google reporting a 1500% increase in these warrant requests between 2017 and 2018. The New York Times reports that Google received 180 such requests last year.
But it’s difficult to say how common the practice is because just about any tech company could be subpoenaed -and not just the companies behind the phone’s operating systems like Apple or Google, but also app companies like Uber and Snapchat. In fact, the Secret Service has actually bypassed geofence warrants by simply buying the data from third party commercial data brokers who sell this type of information to advertisers.
Is this Legal?
Well, yes. As long as there are no laws against it and the courts are signing off on the warrants, it is. But whether or not it’s actually constitutional is a matter of debate. Many privacy advocates and lawmakers have expressed concerned that these warrants are overly broad. In fact, Google itself has stated that the warrants are “uniquely broad.”
While judges have been issuing the warrants, a few judges in high profile cases have began refusing to issue geofence warrants. In one such cases, a federal magistrate ruled against the U.S. Attorney General’s Office’s request for a geofence warrant in Chicago. The Federal Magistrate in one such case noted there was no way for the warrant to be “narrowly tailored” as is required under the Fourth Amendment. Many advocates are hoping this will set a precedent for more lower court judges to reject the warrants as overly broad.
Facing Charges Due to These Types of Searches?
For now, geofence warrants are still being issued though. But many criminal defense lawyers are fighting charges on these grounds. It’s also worth noting that aside from the potential Fourth Amendment violations, simply pointing out that someone’s cellphone was at a given location at a particular date and time doesn’t actually mean that the person themselves were also there.
People sometimes lose their phones, have them stolen or lend them to friends. In one case mentioned in the Wired article a man named Jorge Molina was arrested on the grounds that his phone was at the crime scene, only the phone was actually one of his older devices that he let someone borrow. But because it was still logged into Molina’s Google account, police arrested him and he spent six days in jail. With stories like this, it’s easy to see the problem with police relying on the information discovered from geofence warrants.
That being said, you should not consent to a search of your phone or give the police the password. Doing so may allow the police to find evidence in your phone that could be held against you. If the police ask to speak with your or ask you to consent to a search of your phone, call your lawyer as soon as possible.
If you have been charged with a crime and believe you were investigated in a constitutionally questionable manner, be sure to mention this to your lawyer. Remember not to speak to the police until your attorney is present. If you’ve been arrested for any charge, please call Peter Liss at (760) 643-4050.
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