Geofence Warrants: Anyone Can Be a Suspect

-- By ShahabPournaghshband - 22 Oct 2021

A New Form of Surveillance: Geofence Warrants

The geofence warrant, a new phenomenon, exemplifies just how harmful BigTech? ’s surveillance of its users can be. Geofence warrants grant law enforcement agencies access to corporate location databases in an effort to identify and track individuals in the vicinity of a crime. Corporations like Google provide law enforcement with a list of individuals near a specific area at a requested time, meaning the warrants are not targeted toward specific individuals and are thus quite broad in scope. The rise of geofence warrants is another example of how BigTech? is mishandling our data–this time, through collaboration with the government. This practice ensures that nearly all people who carry a smartphone, 85% of Americans, effectively carry with them a government-planted location microchip. In addition to claims alleging BigTech? ’s intervention with our democracy and elections, geofence warrants require us to make changes to our national privacy legal framework.

How Do Geofence warrants Operate?

The case of Zachary McCoy best illustrates how geofence warrants are used. McCoy? , an avid biker, regularly used a fitness-tracker app on his phone to keep records of his progress and endurance while biking. McCoy? eventually received an email from Google notifying him that unless he went to court and received an injunction, Google would be providing local law enforcement with data from his account. McCoy? ’s lawyer explained that law enforcement had sought a geofence warrant in connection with a local burglary. McCoy? checked his fitness-tracker app and realized that he had coincidentally biked past the victim’s home numerous times the day of the burglary. Indeed, McCoy? was in the wrong place at the wrong time.

McCoy? may have found himself in a similar situation if he was unfortunate enough that a nosy neighbor staring out her window all day notified law enforcement of his presence. Or even if a well-placed security camera had caught his movements. But, in an era where smartphones, smartwatches, and similar technologies are ubiquitous, geofence warrants exacerbate the problem that completely innocent individuals can turn into criminal suspects. Geofence warrants epitomize the fear that we are under constant surveillance. And although it is extremely unlikely that McCoy? would be convicted of any crime, he was nonetheless saddled with legal fees and the burden explaining his lack of involvement. Our every movement, no matter the presence of a nosy neighbor or well-placed security camera, is happening under the eye of Snapchat, Meta, Google, and the like. And worst of all, these companies have been comfortable sharing this data with law enforcement.

Potential Resolutions

There exists a simple solution to regaining our privacy: stop using these services. We can delete the applications that we do not use on our phones, avoid social media at all costs, use VPNs, and, in the case of those like McCoy? , toss out our wearable fitness trackers. Products such as FreedomBox also allow users to securely use the internet and communicate with one another. But these methods only ensure privacy on an individual basis, resonating with folks that have a serious commitment to anti-surveillance. An underlying issue here is the lack of education and exposure to privacy issues. Typical users care more about the convenience of these technologies than privacy, potentially because they do not know the consequences of their actions. But even those who are committed often find themselves too wrapped up in these technologies, having to use Google for work or for school, for example. Without regulation, most of American society will therefore continue to live under the watchful, exploitative eye of BigTech? .

A more effective solution requires a EU-style federal privacy law that not only limits what technology companies can do with our data, but more importantly, empowers users to have autonomy over their data once it is in the hands of these companies. The rights to access, correct, and delete data must be brought within reach of users, along with the right to data portability. Data Subject Access Requests, or DSARs, can provide the medium for these rights to be exercised. A DSAR would require companies to disclose an individual’s data stored, how long it has been stored, how it was obtained, who it had been shared with, among other information. A legal framework implementing DSARs, as seen with the GDPR and the California Consumer Privacy Act, would increase transparency and accountability around data storage. Data subjects would have a clearer path to regaining control of their data. Corporations would also benefit from a nation-wide standard regarding privacy expectations, ensuring that methods of compliance are not different state-to-state.

User consent in the collection of data must also be more strongly emphasized. Current clickwrap and browsewrap agreements are insufficient, but courts and society in general continue to uphold the legal fiction that is constructive consent. Once collected, user data should be used for a limited purpose–location data that is collected for purposes of a fitness-tracker application should not be transferred for advertising businesses in the individual’s area, for example.

Conclusion

The rise in use of geofence warrants only goes to show that there are an increasing number of ways BigTech? surveillance harms individuals. Zachary McCoy? certainly suffered from this, effectively carrying a location microchip with him at all times. But the harm caused by technology companies misusing data is far worse than what happened in McCoy? ’s case. Aggressive advertisement targeting and “fake news” pose more serious threats to democracy as each day goes by. Transparency is necessary, as is regulation of data collection, use, and commoditization. While bringing awareness to individual users is helpful, Congressional action is necessary. A national privacy law would do well to quell some of the issues we have seen in recent years, and luckily, it will likely have support on both sides of the aisle.

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