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Geofence Warrants, and the Precariousness of Private Constitutional Norm-setting

-- By JohnClayton - 12 Mar 2021

Every now and then, following 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 used 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 bulk geolocation data from third-parties.

That hasn’t stopped Google from setting its own quasi-constitutional 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 SensorVault? 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 even this seemingly happy example reveals the precarious nature of citizen-state relations when 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. Nor should we presume a company built on spying is guided by some commitment to the public good. To stand back and let private actors set search and seizure rules, then, is to submit to world where the Fourth Amendment is little more than a proxy for private business interests—upheld when useful, discarded when not.

Constitutional fidelity: The limits of public pressure

It doesn’t take a cynic to see the business value for corporations—even those built on spying—in aligning themselves with cherished constitutional values like free speech and privacy. Hence why Apple fights the FBI over encryption. Or why, in an adjacent constitutional arena, Facebook goes through the trouble of recruiting a panel of pseudo-judges to help legitimize to its content moderation practices.

On one view, we might embrace public pressure as a means to enforce constitutional norms. Certainly, the Supreme Court has not commanded that bulk location data like Google’s be subject to probable cause and warrant requirements. It reserved the question in Carpenter. But Google knows that if it forks over geolocation data anytime police ask, people might stop buying so many Android phones. Perhaps that is enough.

We shouldn’t be fooled. First, not every private actor with access to our personal data is subject to social pressure. Google must answer to the citizens who use its services; not so for those who traffic spying data and equipment directly to law enforcement.

But we must also consider the unique stakes of our Fourth Amendment dilemma. State surveillance, the domain of Fourth Amendment law, has been outsourced to those whose conduct is not constrained by the constitution. The pioneers of new types of spying are the same actors who determine when the state join the pillage. Their ultimate allegiance is to business goals; not some commitment to deeper concepts of liberty or democratic governance. Geofence data is worth going to court over, until Google decides it doesn’t serve its bottom line. And when the really tough cases come along—when the perceived law enforcement need is at its most exigent—it always has the option to give police the data they want, free from any oversight.

To credit Google for its stance on geofence warrants is to praise a hollow form of public relations constitutionalism. We all lose when tough decisions about constitutional boundary-setting are left to the whims of corporate actors.

Reestablishing Fourth Amendment norms via legislation

As long as a constitutional vacuum exists where third-party and state surveillance meet, it will fall to private surveillers set the bounds of Fourth Amendment rights. But how best to fill that vacuum? Courts have a limited role to play—at least one district court has declared geofence warrants unconstitutional—but they are generally ill-equipped to make forward-looking proclamations about the types of data that should be protected under the Fourth Amendment. Legislatives approaches, however, appear more promising.

Limiting law enforcement access

First, lawmakers might try to set procedural limits on when and how law enforcement can access third-party data. New York state, for example, has proposed a ban on the use of geofence requests—with or without a warrant. More ambitiously, Congress might seek to revise the Stored Communications Act (SCA), the outdated statute that determines when and how the government may access electronic data stored on remote servers. Such a statute could, for example, stipulate which data the law enforcement could only obtain with a warrant (e.g., geolocation data) and which data can be obtained via subpoena.

Limiting private data collection

A more aspirational approach would be to target the third-party data collectors directly through a general privacy statute. Congress or state legislatures could place limits on private spying, either by banning certain types of data trafficking (see Illinois’ statute banning the sale of biometric data) or placing limits on how long personal information can be retained. This approach undoubtedly presents more roadblocks, and would likely face a variety of legal challenges. Its benefits, however, would extend far beyond the realm of criminal procedure.

Reclaiming personal control

Ultimately, the easiest and quickest way to begin resetting the role of third-parties in government surveillance is to stop giving our data to them in the first place. Abandoning a smartphone altogether is one way to avoid ending up in SensorVault? . Alternatively, we can choose to carry handsets with alternative, open-source operating systems that don’t facilitate spying. Likewise, technologies like FreedomBox? can allow us to keep under our own roofs, rather than on some third-party’s server. Technology, then, can allow us to begin immediately reclaiming Fourth Amendment rights.

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