February 2025

Yaoyu Tang, MJLST Staffer

 

Picture this: A sunny Saturday afternoon at a bustling shopping mall. Children’s laughter echoes as they pull their parents toward an ice cream stand. Couples meander hand-in-hand past glittering storefronts, while teenagers crowd the food court, joking and snapping selfies. It’s a portrait of ordinary life—until chaos quietly unfolds. A thief strikes a high-end jewelry store and vanishes into the crowd, leaving no trail behind. Frustrated and out of options, law enforcement turns to a geofence warrant, demanding Google provide location data for every smartphone within a quarter-mile radius during the heist. In the days that follow, dozens of innocent shoppers, workers, and passersby find themselves under scrutiny, their routines disrupted simply for being in the wrong place at the wrong time.

This story is not hypothetical—it mirrors real-life cases where geofence warrants have swept innocent individuals into criminal investigations, raising significant concerns about privacy rights and constitutional protections.

Geofence warrants are a modern investigative tool used by law enforcement to gather location data from technology companies.^[1] These warrants define a specific geographic area and time frame, compelling companies like Google to provide anonymized location data from all devices within that zone.^[2] Investigators then sift through this data to identify potential suspects or witnesses, narrowing the scope to relevant individuals whose movements align with the crime scene and timeline.^[3]

The utility of geofence warrants is undeniable. They have been instrumental in solving high-profile cases, such as identifying suspects in robberies, assaults, and even the January 6 Capitol riots.^[4] By providing a way to access location data tied to a specific area, geofence warrants enable law enforcement to find leads in cases where traditional investigative techniques might fail.^[5] These tools are particularly valuable in situations where there are no direct witnesses or physical evidence, allowing law enforcement to piece together events and identify individuals who were present during criminal activity.^[6]

However, the benefits of geofence warrants come with significant risks. Critics argue that these warrants are overly broad and invasive, sweeping up data on innocent bystanders who happen to be in the area.^[7] In addition, civil liberties organizations, such as the ACLU and the Electronic Frontier Foundation (EFF), have strongly criticized geofence warrants.^[8] They argue that the geofence warrants infringe on privacy rights and disproportionately affect marginalized communities. Without strict limitations, geofence warrants could become tools of mass surveillance, disproportionately targeting marginalized communities or chilling free movement and association. ^[9] Moreover, this indiscriminate collection of location data raises serious Fourth Amendment concerns, as it can be seen as a form of digital general warrant—a modern equivalent to the invasive searches that the Framers sought to prevent.^[10] Tension between their investigative utility and potential for privacy violations has made geofence warrants one of the most controversial tools in modern law enforcement.

The legality of geofence warrants is far from settled, with courts offering conflicting rulings. In United States v. Smith, the Fifth Circuit declared geofence warrants unconstitutional, stating that they amount to general searches.^[11] The court emphasized the massive scope of data collected and likened it to rummaging through private information without sufficient cause.^[12] The decision heavily relied on Carpenter v. United States, where the Supreme Court held that accessing historical cell-site location information without a warrant violates the Fourth Amendment.^[13] In Carpenter, the Court recognized that cell-site location information (CSLI) provides an intimate record of a person’s movements, revealing daily routines, frequent locations, and close personal associations.^[14] This information, the Court held, constitutes a “search” within the meaning of the Fourth Amendment, requiring a warrant supported by probable cause.^[15] Conversely, the Fourth Circuit in United States v. Chatrie upheld the use of geofence warrants, arguing that users implicitly consent to data collection by agreeing to terms of service with tech companies.^[16] The court leaned on the third-party doctrine, which holds that individuals have reduced privacy expectations for information shared with third parties.^[17] These conflicting rulings highlight the broader struggle to apply traditional Fourth Amendment principles to digital technologies. The Fifth Circuit’s ruling highlights discomfort with the vast reach of geofence warrants, pointing to their lack of Fourth Amendment particularity.^[18] Conversely, the Fourth Circuit’s reliance on the third-party doctrine broadens law enforcement access, framing user consent as a waiver of privacy.^[19] This split leaves courts struggling to reconcile privacy with evolving surveillance technology, underscoring the urgent need for clearer standards.

Tech companies like Google play a pivotal role in the geofence warrant debate. Historically, Google stored user location data in a vast internal database known as Sensorvault.^[20] This database served as a central repository for location data collected from various Google services, including Google Maps, Search, and Android devices.^[21] Law enforcement agencies frequently sought access to this data in response to geofence warrants, making Sensorvault a crucial point of contention in the legal and privacy debates surrounding this technology.^[22] However, in 2023, Google announced significant changes to its data policies: location data would be stored on user devices instead of the cloud, backed-up data would be encrypted to prevent unauthorized access, including by Google itself, and default auto-delete settings for location history would reduce data retention from 18 months to three months.^[23] These policy changes significantly limit the availability of location data for law enforcement agencies seeking to execute geofence warrants.^[24] By storing data locally on user devices and implementing robust encryption and auto-deletion features, Google has effectively reduced the amount of location data accessible to law enforcement.^[25] This highlights the significant influence that corporate data policies can exert on law enforcement practices.^[26] Other companies, like Apple, have adopted even stricter privacy measures, refusing to comply with all geofence warrant requests.^[27]

The debate surrounding the legality and scope of geofence warrants remains contentious. Courts grapple with varying interpretations, legislators struggle to enact comprehensive legislation, and public opinion remains divided. This uncertainty necessitates authoritative guidance. Whether through judicial precedent, legislative reform, or technological advancements that mitigate privacy concerns, achieving a consensus on the permissible use of geofence warrants is crucial. Only with such a consensus can society navigate the delicate balance between public safety and individual privacy rights in the digital era.

 

Notes:

^[1] Ronald J. Rychlak, Geofence Warrants: The New Boundaries, 93 MISS. L. Rev. 957-59 (2024).

^[2] Id.

^[3] Id.

^[4] Mark Harris, A Peek Inside the FBI’s Unprecedented January 6 Geofence Dragnet, WIRED(Nov. 28, 2022, 7:00 AM), https://www.wired.com/story/fbi-google-geofence-warrant-january-6/.

^[5] Jeff Welty, Recent Developments Concerning Geofence Warrants, N.C. CRIM. L. (Nov. 4, 2024), https://nccriminallaw.sog.unc.edu/recent-developments-concerning-geofence-warrants/.

^[6] Prathi Chowdri, Emerging tech and law enforcement: What are geofences and how do they work, POLICE1(Nov. 16, 2023, 9:06 PM), https://www.police1.com/warrants/google-announces-it-will-revoke-access-to-location-history-effectively-blocking-geofence-warrants.

^[7] Jennifer Lynch, Is This the End of Geofence Warrants, ELECTRONIC FRONTIER FOUND., https://www.eff.org/deeplinks/2023/12/end-geofence-warrants.

^[8] ACLU, ACLU Argues Evidence From Privacy-Invasive Geofence Warrants Should Be Suppressed, https://www.aclu.org/press-releases/aclu-argues-evidence-from-privacy-invasive-geofence-warrants-should-be-suppressed#:~:text=In%20the%20brief%2C%20the%20ACLU,they%20were%20engaged%20in%20criminal.

^[9] LYNCH, supra note 7.

^[10] Id.

^[11] United States v. Smith, 110 F.4th 817 (5th Cir. 2024).

^[12] Id. at 28-30.

^[13] Id. at 27-29.

^[14] Carpenter v. United States, 585 U.S. 296 (2018)

^[15] Id.

^[16] United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024).

^[17] Id. at 326-57.

^[18] Smith, 110 F.4th 817, at 27-30.

^[19] Chatrie, 107 F.4th 319, at 326-57.

^[20] Jennifer Lynch, Google’s Sensorvault Can Tell Police Where You’ve Been, ELECTRONIC FRONTIER FOUND., https://www.eff.org/deeplinks/2019/04/googles-sensorvault-can-tell-police-where-youve-been?.

^[21] Id.

 

^[22] Id.

^[23] Skye Witley, Google’s Location Data Move Will Reshape Geofence Warrant Use, BLOOMBERG L. (Dec. 20, 2023, 4:05 AM), https://news.bloomberglaw.com/privacy-and-data-security/googles-location-data-move-will-reshape-geofence-warrant-use?.

^[24] Id.

^[25] Id.

 

^[26] Id.

 

^[27] APPLE, Apple Transparency Report: Government and Private Party Requests, https://www.apple.com/legal/transparency/pdf/requests-2022-H1-en.pdf.

Sarah Chaoui, MJLST Staffer

 

“The immense destruction brought about by indiscriminate bombing, by large-scale use of bulldozers and herbicides is an outrage sometimes described as ecocide, which requires urgent international attention.”^[i]

– Olof Palme, Former Prime Minister of Sweden, at the UN Conference on the Human Environment (1972).

The term ecocide was first coined at the Conference on War and National Responsibility by Arthur W. Galston, a professor and biologist who first identified the defoliant effects of the chemicals that later developed into Agent Orange.^[ii] Gaston characterized ecocide as the massive destruction and damage of ecosystems and proposed an international agreement to ban ecocide at the conference.^[iii] In 2021, an expert panel convened by the Stop Ecocide Foundation proposed the following legal definition of ecocide: “For the purposes of this Statute, ‘ecocide’ means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” ^[iv] While ecocide is not yet universally recognized as a crime under international law, there is growing advocacy to establish it as a fifth international crime, along with genocide, crimes against humanity, war crimes, and the crime of aggression.^[v]

Recognizing ecocide as a crime is important for many reasons. First, it would create accountability for deliberate or negligent environmental destruction both in the context of armed conflicts and in times of peace.^[vi] In theory, the proposed crime would allow responsible parties to be prosecuted for large-scale environmental harms resulting from state actions such as mass bombings or other actions resulting in oil spills and extensive air pollution.^[vii] Second, the criminal penalties associated with committing the proposed crime would deter corporations and government actors from engaging in harmful practices and potentially reduce their overall negative environmental impact.^[viii] Third, it would be an additional measure to protect biodiversity and ecosystems necessary for human and animal survival.^[ix] Finally, the recognition of ecocide as a crime would legitimize and emphasize the severity of environmental harm, especially as we are in the midst of a climate crisis.^[x]

While an international crime of ecocide does not yet exist, several countries have an existing or proposed national crime of ecocide. These countries include Ecuador, Vietnam, Uzbekistan, and France, among others.^[xi] According to the co-founder and executive director of

Stop Ecocide International, interest in criminalizing ecocide has grown dramatically in recent years, largely because of the broad legal definition that focuses on the environmental consequences rather than specific activities.^[xii] As more countries consider adopting domestic laws criminalizing environmental destruction, have reinforced the need for an ecocide crime at the international level.^[xiii]

Despite the growing popularity of domestic ecocide laws, there are several barriers to establishing ecocide as an international crime. There is first the legal barrier of amending the Rome Statute, the international treaty establishing the International Criminal Court.^[xiv] The legal process for making ecocide an international crime would require a Head of State to propose an amendment to the Rome Statute and submit it at least three months before a meeting of the States Parties to the Rome Statute.^[xv] If there is a simple majority at that meeting, the amendment can be considered and adopted with the agreement of at least ⅔ of the member states.^[xvi] However, there will likely be resistance or opposition from industrialized countries whose economies rely heavily on resource extraction and polluting industries.

There are also possible jurisdictional issues. The ICC can only prosecute crimes committed by nationals of states that are parties to the Rome Statute.^[xvii] Non-signatory states, such as the United States, China, and India, also three of the world’s largest polluters^[xviii], would not fall under ICC jurisdiction. There is, however, an all-inclusive form of jurisdiction known as “universal jurisdiction” that allows national courts to investigate and prosecute an entity suspected of committing a crime “anywhere in the world regardless of the nationality of the accused or the victim or the absence of any links to the state where the court is located”.^[xix] More broadly, because ecocide often involves numerous actors across various jurisdictions, determining the accountable jurisdiction or party can be particularly difficult. While these challenges are significant, growing global awareness of environmental crises may drive the necessary legal and political solutions to address them. Criminalizing ecocide is an essential step toward robust legal environmental protections and would mark a cultural shift that legitimizes the severity of environmental harm. As Valérie Cabanes, a French lawyer and proponent of ecocide as an international crime aptly stated, “[b]y destroying the ecosystems on which we depend, we are destroying the foundations of our civilization and mortgaging the living conditions of all future generations. “This is no less serious than war crimes, crimes against humanity, or the crimes of genocide or aggression. As well as being a major issue of global socio-environmental justice, is it not ultimately the survival of the human species that is at stake?”^[xx] Recognizing environmental destruction as a legitimate crime reminds us that the environment is our shared habitat and therefore our shared responsibility; its deliberate destruction should be treated as a matter of utmost international importance.^[xxi]

 

Notes:

¹ Sean Fleming, What is ecocide and which countries recognize it in law?, World Econ. F.

(Aug. 30, 2021), https://www.weforum.org/stories/2021/08/ecocide-environmental-harm-international-crime/

² https://ecocidelaw.com/history/ (click on “1970s”, then click “read more” on “1970 First coining of the term ecocide”) (alternative source: https://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf, pg. 4)

³ Id.

⁴ June 2021: historic moment as Independent Expert Panel launches definition of ecocide, Stop Ecocide Int’l,

https://www.stopecocide.earth/legal-definition

⁵ See supra note 1; see generally How the Court works, Int’l Crim. Ct., https://www.icc-cpi.int/about/how-the-court-works

⁶ Rachel Killean, The Benefits, Challenges, and Limitations of Criminalizing Ecocide, IPI Glob. Observatory (Mar. 30, 2022),  https://theglobalobservatory.org/2022/03/the-benefits-challenges-and-limitations-of-criminalizing-ecocide/#:~:text=As%20environmental%20harms%20can%20be,once%20a%20crime%20was%20introduced (stating that the most obvious advantage of ecocide as a crime is the “expansion of international accountability for enviornmental harms.”)

⁷ Id.

⁸ See Rebecca Hamilton, Why Criminalize Ecocide? Experts Weigh In, Just Security (Sept. 23, 2024),

https://www.justsecurity.org/100172/why-criminalize-ecocide-experts/#:~:text=The%20recent%20submission%20by%20Vanuatu,than%20merely%20compensating%20for%20it.

⁹ World Econ. F., The Global Risks Report 2024, p. 38 (Jan. 10, 2024), https://www3.weforum.org/docs/WEF_The_Global_Risks_Report_2024.pdf

(explaining that biodiversity loss is a larger global challenge than previously thought).

¹⁰ United Nations, The Climate Crisis—A Race We Can Win (2020), https://www.un.org/en/un75/climate-crisis-race-we-can-win

¹¹ See generally Ecocide / serious environmental crimes in national jurisdictions, Ecocide Law, https://ecocidelaw.com/existing-ecocide-laws/ (last visited Nov. 24, 2024).

¹² Isabella Kaminski, Growing number of countries consider making ecocide a crime, The Guardian

(Aug. 26, 2023), https://www.theguardian.com/environment/2023/aug/26/growing-number-of-countries-consider-making-ecocide-crime

¹³ Id.

¹⁴ See Resource library, Int’l Crim. Ct.,  https://www.icc-cpi.int/resource-library#:~:text=The%20Rome%20Statute%20of%20the%20International%20Criminal%20Court%20is%20the,and%20judicial%20assistance%2C%20and%20enforcement.

¹⁵ FAQs–Ecocide & the Law, Stop Ecocide Int’l, https://www.stopecocide.earth/faqs-ecocide-the-law#:~:text=A%20Head%20of%20State%20(or,and%20didn’t%20make%20it?

¹⁶ Id.

¹⁷ See generally Understanding the International Criminal Court, Int’l Crim. Ct.

https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf

¹⁸ Which countries are the world’s biggest carbon polluters?, Climate Change News (May 17, 2021), https://climatetrade.com/which-countries-are-the-worlds-biggest-carbon-polluters/#:~:text=Below%2C%20you’ll%20discover%20the,792%20bn%20tons%20of%20CO2

¹⁹ Amnesty Int’l, Universal Jurisdiction: Questions and Answers Concerning Universal Jurisdiction (2001), https://www.amnesty.org/en/documents/ior53/020/2001/en/

²⁰ Supra note 1

²¹ Stephanie Safdie, Ecocide–Definition and Examples, Leaf

(updated Nov. 7, 2023), https://greenly.earth/en-us/blog/ecology-news/ecocide-definition-and-examples