US appellate court deems geofence warrants in violation of the Constitution

A recent decision by a federal appeals court has deemed geofence warrants to be in violation of the Constitution, thereby impacting their application in numerous states within the U.S.

The verdict delivered last Friday by the Fifth Circuit Court of Appeals, which serves the states of Louisiana, Mississippi, and Texas, declared geofence warrants inherently unconstitutional under the Fourth Amendment. This Amendment safeguards citizens from unreasonable searches and seizures.

The decision was met with praise from individuals and organizations advocating for privacy and civil liberties, essentially rendering the employment of geofence warrants illegal in the aforementioned states for the time being.

Geofence warrants, also known as “reverse” search warrants, authorize law enforcement to specify a geographical perimeter on a map, like a crime scene, and compel companies with user location data, such as Google, to reveal any devices present in the specified location during a given time frame.

Critics have consistently argued against the constitutionality of geofence warrants, pointing out their potential to be excessively broad and to inadvertently encompass individuals who are not involved in criminal activities.

The legal dispute in question involves a geofence warrant issued in relation to an armed heist of a U.S. Postal Service worker in Mississippi during February 2018, used to pinpoint the suspects of the robbery.

The ruling from the Fifth Circuit diverges from a prior decision by the Fourth Circuit, which encompasses North Carolina, Virginia, and West Virginia, where it was adjudged that accessing location data from Google does not constitute a search, thus affirming the legality of geofence warrants in those jurisdictions.

Contrastingly, the Fifth Circuit found that extracting data from Google’s extensive location databases amounts to a search. However, due to the expansive nature of these databases and the necessity to scan them entirely, the court concluded that no existing legal framework justifies such searches, as analyzed in a blog post by law professor Orin Kerr.

The court highlighted the core issue with geofence warrants, emphasizing that they are executed without a specific suspect in mind, relying only on the time and place to potentially identify individuals post-search, a practice deemed constitutionally inadequate.

Despite ruling against the constitutionality of geofence warrants, the Fifth Circuit acknowledged the police department’s good faith in obtaining the warrant from Google, consequently maintaining the conviction. This was attributed to the novelty of geofence warrants at the time and the department’s efforts to seek legal counsel beforehand, leading to the decision not to exclude the evidence in this particular case.

Kerr’s examination suggests the ruling could cast doubt on the constitutionality of digital warrants for online content more broadly.

Given that companies like Google, Uber, Snap, among others, compile vast quantities of user location information, this data becomes accessible to law enforcement agencies. With the proliferation of geofence warrant requests in recent years, constituting a significant portion of all legal inquiries received by such companies, the discussion around user privacy has intensified.

In response to these privacy concerns, Google announced it would transition to storing users’ location data directly on their own devices, thereby diminishing the effectiveness of geofence warrants for policing purposes.