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.