A federal judge has ruled law enforcement investigators can obtain location data on all cell phones within a reasonable range of a crime.
The ruling upheld geofence warrants requested by law enforcement to start and expand searches of location information gathered by Google that documents customers’ data for a specific, concentrated area.
The warrants are typically generated where a crime has occurred. The warrant includes the activity of cell phone users in the area whether they are guilty or not, or regardless of whether they are even a suspect, according to a March 11 article on reason.com.
Google tracks cell phone activity from clients who automatically opt-in on their service agreements wrote legal scholar Orin S. Kerr of the University of California at Berkeley School of Law. Kerr states Google logs users location 240 times per day, and these records have become a “useful tool for law enforcement.”
In the case in question, United States v. Chatrie, records revealed law enforcement asked for warrants to identify every phone logged into Google within a 150-meter radius of a bank robbery in Virginia.
The warrants set time and distance parameters. The original warrant requested usage of all phones 30 minutes before the robbery took place to 30 minutes after the robbery. The initial warrant compelled Google to inform law enforcement that 19 phones fit the criteria. It also chronicled the travel patterns of the 19 phones for the hour requested.
Subsequent warrants then expanded the location of the 19 phones by increasing the time window from a half-hour before and after, to an hour before and after.
Kerr states this increase in time allowed the government to track the 19 phones in a detailed fashion, yet the warrant gave law enforcement no information as to who actually possessed the phones.
The gist of the case raised a legal issue as to the attainment of geofence information. Kerr believes law enforcement’s warrant request of Google’s phone data should be protected against Fourth Amendment violations related to search and seizure issues. Essentially, law enforcement can track any phone that has not opted-out of Google’s service plan.
Another issue raised was the validity of the execution of a geofence warrant and how probable cause standards apply. If people voluntarily opt-in to the Google location finder, what kind of probable cause protection must be considered in the attainment of a geofence warrant?
The prosecution argued Fourth Amendment protection does not apply in this case and probable cause for the 19 phones should take precedence because the phones, although considered individual, were evidence in a robbery. The government continued, stating there is no requirement for probable cause as to “each individual person’s evidence being evidence itself.”
The United States cited a legal argument asking the court to imagine when the government obtains a warrant to search a home where four people live. The government implied investigators do not need evidence that all four people were involved in the crime.
Kerr believes revealing records that exist in Google’s data banks, which prove a phone was in the area around the bank robbery, should be viewed differently as a physical search of place, things or one’s own body.
Deciding Judge Lauck said it could not be possible to identify every innocent person (phone) in a criminal investigation.
Lauck allowed the broadness of a criminal search by stating broadness itself — the standard of probable cause — and Fourth Amendment analysis should continue regarding the blanket sweep of phones during an investigation.
The judge acknowledged his decision and its application will change over the years. He agreed the geofence warrant violated the Fourth Amendment, until the good faith exception was applied.
This exception offered the judge discretion to consider the broad-based searches and the legal issues around geofence warrants — calling them “novel” in scope.
Privacy laws should be more clearly defined at the legislative level, Kerr wrote. However, he said until this occurs, Lauck’s decision regarding warrants for cell phones that are located around an area where a crime occurred will continue to be executed.
