Legislators Looking To Ban Geofence/Reverse Warrants In The State Of New York

from the illegalize-it dept

A report published by Google's transparency team last August made it clear reverse warrants weren't a law enforcement fad, but rather a trend. Google is the recipient of pretty much every so-called reverse (or geofence) warrant issued, thanks to its vast stores of location info. When cops have a crime but no likely suspect, they have the option of turning everyone with a cell phone in the area into a suspect and working their way backwards from this list of data to find the most likely suspects.

Google's report showed an exponential escalation in geofence warrant deployments.

According to the data, Google received 982 geofence warrants in 2018, 8,396 in 2019 and 11,554 in 2020.

While regular search warrants generally show probable cause to search a suspect's property for evidence of criminal activity, the only probability needed for geofence warrants is the likelihood the data investigators are seeking is held by Google. This reversal of the probable cause equation has resulted in an explosion of requests sent to Google, but since the process involves the very early steps in a criminal investigation, there have been very few direct challenges of reverse warrant-derived evidence during criminal trials.

With Google unable to make a call as to whether requests are overbroad and court oversight being mostly an exception, it may be up to lawmakers to curtail the use of warrants that ask private companies to perform proxy searches for criminal suspects. Fortunately, some lawmakers are doing exactly that, as Zack Whittaker reports for TechCrunch. (h/t Michael Vario)

A New York bill that would ban state law enforcement from obtaining residents’ private user data from tech giants through the use of controversial search warrants will get another chance, two years after it was first introduced.

The Reverse Location Search Prohibition Act was reintroduced to the New York Assembly and Senate last year by a group of Democratic lawmakers after the bill previously failed to pass. Last week, the bill was referred to committee, the first major hurdle before it can be considered for a floor vote.

The bill, if passed, would be the first state law in the U.S. to end the use of geofence warrants and keyword search warrants, which rely on asking technology companies to turn over data about users who were near the scene of a crime or searched for particular keywords at a specific point in time.

The bill [PDF] anticipates the loopholes law enforcement might try to use and closes them. It also makes it clear the courts have no say in this matter at all.

§ 695.10 Issuance of reverse location court orders and reverse keyword court orders.
No court shall issue a reverse location court order or a reverse keyword court order.

As for state and local law enforcement agencies, their options are similarly nonexistent.

1. No government entity shall seek, from any court, a reverse location court order or a reverse keyword court order.

2. No government entity shall make a voluntary reverse location request or a voluntary and reverse keyword request.

3. No government entity shall seek, secure, obtain, borrow, purchase, use, or review any information or data obtained through a reverse location request or a reverse keyword request.

4. No government entity shall seek the assistance of any non-governmental entity, any agency of the federal government, or any agency of the government of another state or subdivision thereof in obtaining information or data from a reverse location court order, reverse keyword court order, reverse location request, or reverse keyword request if the government entity would be barred from directly seeking such information under this article.

So, that makes it pretty much impossible for law enforcement to route around the law. The courts are banned from issuing warrants. Investigators can't ask other agencies to execute reverse warrants on their behalf. And, if law enforcement somehow manages to obtain this data by utilizing an unforeseen loophole in the law, it still won't work. The ban provides for automatic suppression or exclusion of evidence derived from a geofence warrant.

In addition, the law provides a legal avenue to sue government entities if they do break the law. Citizens who've had their location info illegally obtained by law enforcement can sue the agency that performed the illegal search and recover $1,000 per violation and punitive damages.

It's a pretty solid law. And that means someone in the state legislature is going to try to kill it or, at least, neuter it into uselessness. Hopefully the bill's sponsors and supporters can guide it safely through the gauntlet of "tough on crime" legislators, overly powerful police unions, and overly powerful law enforcement agencies. Law enforcement has embraced this new way to obtain data generated by thousands of innocent people but has yet to prove it can be trusted with it. The best thing is to take the option away before it does any damage.

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Filed Under: 4th amendment, general warrants, geofence, geofence warrants, new york, privacy, reverse warrants