WASHINGTON — The American Civil Liberties Union and several partner organizations have asked the U.S. Supreme Court to declare geofence warrants unconstitutional, arguing the increasingly used investigative tool amounts to a sweeping digital dragnet that violates the Fourth Amendment.
The American Civil Liberties Union, alongside the ACLU of Virginia, Electronic Frontier Foundation and the Center on Privacy & Technology at Georgetown Law, filed an amicus brief in Chartie v. U.S., the first geofence search case to reach the Supreme Court.
According to the ACLU, Chartie v. U.S. is also “the first major case addressing how the court’s 2018 decision in Carpenter v. United States applies to other kinds of location-tracking technologies.”
The amicus brief “assert[ed] that police should not be able to conduct searches using geofence warrants, a novel and invasive surveillance technique that enables law enforcement to search for and locate unknown numbers of people in a large geographical area without reason to believe they were engaged in criminal conduct,” as summarized in short by the ACLU.
The ACLU outlines that geofence warrants “direct Google or other companies to hand over users’ location data from every cell phone or other device the company estimates was in a certain area during a certain time frame,” and that, with these types of warrants becoming more common, “serious questions under the Fourth Amendment” are being raised.
Questions about geofence warrants are arising, the ACLU argues, because the warrants are “dragnets” and are “typically issued without police demonstrating reason to believe all the people who own those devices were involved in any crime.” Citing an example of this happening in San Francisco, the ACLU concludes that such warrants “revealed a troubling violation of our right to be secure in our homes and to be free from unreasonable search without probable cause.”
A member of the ACLU’s Speech, Privacy, and Technology Project stated that “a search that ensnares any number of innocent people just because they are nearby when a crime occurs is an unconstitutional fishing expedition… There are too many examples of these overbroad searches invading people’s privacy, including homes, doctors’ offices, and churches. Courts should not allow them.”
Previously, a federal judge in Virginia “held that the geoforce warrant in Mr. Chatrie’s case was overbroad and the investigators lacked probable cause for much of the data they obtained.” According to the ACLU, the warrant issued in this case “tracked all Google location history [of] users who were estimated to be within a 150-meter radius of a bank robbery in Virginia — an area as big as several football fields that encompassed residential buildings, businesses and a church.”
The ACLU highlights that the warrant issued “also allowed police to obtain additional location information about individuals that were ensnared in the initial dragnet.”
The ACLU reported that the district court had “held that the government’s search warrant unconstitutionally left it to the officers and Google, not to a judge, to decide what location and identifying information the company ultimately revealed, a clear departure from the neutral magistrate’s prescribed role under the Fourth Amendment.”
Despite this holding, according to the ACLU, the court “refused to suppress the illegally obtained evidence on the grounds that the ‘good-faith exception’ to the exclusionary rule — which allows evidence to be admitted when police reasonably rely on a facially valid warrant — applied.”
As the ACLU outlines, on Mr. Chatrie’s appeal, “the U.S. Court of Appeals for the Fourth Circuit was divided but ultimately allowed prosecutors to use the evidence it had gathered through the geofence search.”
Now before the Supreme Court, the ACLU argues in its amicus brief that “geofence warrants are never a permissible investigatory method under the Fourth Amendment,” and that “geofence searches are unconstitutional general warrants that courts should categorically reject.”
Concluding its argument, the ACLU states that “allowing police to access your private search history just because you happen to be three football fields away from where they say a crime was committed is both absurd and dangerous. And most importantly, it’s unconstitutional: Virginians do not lose their right to privacy because they happen to be within an arbitrary radius set by police.”
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