Geofence warrants, the ability of police to obtain extensive information about electronic devices in a certain area, are unconstitutional under the Fourth Amendment, according to Friday’s ruling from the Fifth Circuit Court of Appeals. The decision is surprising given the fact that the Fifth Circuit Court of Appeals is considered a constitutional appellate court that, as Ars Technica points out, often favors the police over individual liberties.
The case, United States v. Smith, involving Mississippi men charged with armed robbery in 2018. Police had no suspects for months and turned to a geofence warrant around the crime scene to find the possible perpetrators, narrowing. in about 1 hour. Google provided the information, according to the EFF, and the police arrested two men whose phones indicated that they were in the area at the time.
As EFF notes in citing this decision, the Fifth Circuit found that “the major problem with these warrants” is that “never enter a specific user to be identified, only a temporary location and location where any given user it is possible open after search.” The court called this “constitutionally insufficient.”
The decision outlines three steps law enforcement needs to take during a geofence warrant, starting with giving Google the time and place they wish to search. From there, Google receives anonymous data for every device that talks to Google at that location and time, aggregating millions of records. The second step involved policing the situation and reducing data, looking at anonymous lists and finding out which devices they want to know more about. The third step is when police ask for account identification information from devices they’ve identified as particularly interesting. Meanwhile, Google provides names and emails for related devices.
Interestingly, the new decision differs from a Fourth Circuit decision last month that rejected a similar argument about geofence warrants. Back in 2019, police issued about 9,000 geofence requests for the year, surpassing 11,500 geofence warrants in 2020. By 2021, nearly 25% of all Google-issued warrants were geofence warrants, according to the ruling.
Google did not immediately respond to emailed questions on Wednesday. We will update this post when we hear back.
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