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Geofence Warrants: The Fourth Amendment as Public Relations Tool

-- By JohnClayton - 12 Mar 2021

Every now and then the Constitution can be good for business. Take the case of Google and geofence warrants. Five years ago, law enforcement agencies began requesting from Google location data for phones linked to specific geographic areas and time periods. Police investigating a bank robbery, for example, might ask for location data of phones that passed within 100 feet of the bank in the 30 minutes before and after the robbery. Investigators then analyze the data to pursue and develop leads.

Geofence warrants are controversial. They may be unconstitutional. But as a matter of Fourth Amendment law, it is debatable whether police even need a warrant to request and receive geofence data from a third-party.

None of this, however, has stopped Google from setting its own quasi-constitutional ground rules for geofence data requests. Google refuses to respond to such requests without a warrant, and it only provides anonymized data (at least initially). And since Google is effectively the only company to receive geofence search requests—thanks to its uniquely extensive database—its judgment on the Fourth Amendment status of geofence searches is final (at least for now).

One could applaud Google for going “above and beyond.” But this example reveals the precarious nature of citizen-state privacy in a world in which third-parties are both the primary facilitators of government surveillance and active shapers of Fourth Amendment norms. Google’s lawyers are not a constitutional court, and unless we are to believe a company built on spying has suddenly had an ethical revelation, there must be something else at play here. What good are Fourth Amendment values, when their scope is contingent on a private party’s business interests?

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