Reason Roundup

'Geofence Warrant' for All Cell Location Data From Area Near Robbery Is Ruled Unconstitutional

Plus: New rules on sex discrimination in education, economists warn of housing market exuberance, and more...

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dreamstime_l_181786109 | ID 181786109 © Andrey Popov | Dreamstime.com
( ID 181786109 © Andrey Popov | Dreamstime.com )

"Geofence warrant" was unconstitutional, says judge. Can the cops use Google location data to find anyone in an area at a given time? That's what a federal court was asked to decide recently.

The case stems from a 2019 bank robbery in Virginia. Police got a "geofence warrant" to find anyone who was near the scene around the time the robbery took place.

U.S. District Judge Hannah Lauck has now held that the search—which relied on cellphone data location histories—violated the Fourth Amendment's protection against unreasonable searches, since it collected information on myriad people without having any evidence of their involvement in the crime. "The warrant simply did not include any facts to establish probable cause to collect such broad and intrusive data from each of these individuals," wrote Lauck in her decision.

The judge stressed that she was ruling on this particular situation—not on geofence warrants broadly—and there could be a situation in which their use was constitutional.

But "the decision — believed to be the first of its kind — could make it more difficult for police to continue using an investigative technique that has exploded in popularity in recent years," the Associated Press reports. Privacy experts told the A.P. that it could influence future rulings on the use of such warrants:

"She's saying that's a general search that's just sweeping up people, most of whom have nothing to do with the thing you are investigating," said Jennifer Stisa Granick, surveillance and cybersecurity counsel for the American Civil Liberties Union. "You have to seriously consider the impact on uninvolved people and their privacy, and the balance of power between people and law enforcement."

Jennifer Lynch, surveillance litigation director for the Electronic Frontier Foundation, a nonprofit digital rights group, said attorneys around the country could cite the ruling in their own cases because it is believed to be the first time a federal district court judge has ruled on the constitutionality of a geofence warrant.

"It's helpful to other judges to see how a judge has dealt with this, especially since the technology is so new," Lynch said.

That's important, since police use of geofence warrants has been climbing steeply.

Google told the court that geofence warrants account for more than 25 percent of all U.S. warrants it receives and that Google's receipt of such warrants rose 1,500 percent between 2017 and 2018 and 500 percent between 2018 and 2019.

Civil liberties and privacy groups tend to oppose geofence warrants. But not everyone who cares about the Constitution is opposed to them.

"I hope the courts do not expand the Fourth Amendment to impede technological tools like geofences that help police conduct more accurate, less discretion-based initial investigations," wrote University of Arizona law professor Jane Bambauer in March. "With appropriate constraints, geofences and other 'suspectless search' technologies can be an integral part of police modernization and reform."

University of California, Berkeley law professor and Volokh Conspiracy blogger Orin Kerr was also critical of Lauck's ruling in this case. "I am not sure the execution of geofence warrants involve a Fourth Amendment search at all.  And if they do, then I think the Fourth Amendment standard is a lot less strict than Judge Lauck concludes it is," he wrote last month. "How the Fourth Amendment applies to geofence warrants raises some tricky issues. But I don't think [Lauck's] opinion points in the right direction to help find the answers." More here.

FREE MINDS

The Biden administration is expected to make a controversial change to rules regarding Title IX, the anti-discrimination law governing sex, gender, and education. From The Washington Post:

Title IX bars discrimination on the basis of sex in education, and the new rules would make clear this includes discrimination based on sexual orientation and gender identity, among other things, according to two people familiar with a draft of the proposed regulation who spoke on the condition of anonymity because they were not authorized to publicly comment on the subject.

Regulations carry the power of law. The rules, if finalized, would set up a clash with state laws that bar transgender women from competing in women's sports. Those statutes are already being challenged in the courts.

A spokeswoman for the Education Department declined to comment on what will be in the proposed regulation, which the administration has said it expects to publish in April.

The draft text of the proposed regulation reportedly includes this sentence: "Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex-related characteristics (including intersex traits), pregnancy or related conditions, sexual orientation, and gender identity."

The Biden administration is also expected to revise (yet again, after previous revisions during the Obama and Trump administrations) the rules on how schools adjudicate sexual assault and harassment allegations. The Trump-era rewrite included more due process rights for the accused, which the current administration is expected to revoke.

"A reversal here is bad news," as Reason's Scott Shackford wrote yesterday. "Public universities have consistently been violating the due process rights of students who have been accused of sexual misconduct, depriving them of defenses and the ability to confront accusers. Courts have been slapping down some of the bad practices that were encouraged by the Department of Education under former President Barack Obama."

FREE MARKETS

Another housing bubble? The Federal Reserve Bank of Dallas is warning that we could be in the midst of another housing bubble. "Rapid real house-price appreciation, such as that observed now, does not in itself signal a bubble," notes a recent blog post on the Dallas Fed's website. "But real house prices can diverge from market fundamentals when there is widespread belief that today's robust price increases will continue."

This sort of "expectations-driven explosive appreciation (often called exuberance) in real house prices has many consequences" and can produce "economic upheaval," it warns. And "the current reading indicates that the U.S. housing market has been showing signs of exuberance for more than five consecutive quarters through third quarter 2021."

So what does that mean?

Our evidence points to abnormal U.S. housing market behavior for the first time since the boom of the early 2000s. Reasons for concern are clear in certain economic indicators—the price-to-rent ratio, in particular, and the price-to-income ratio—which show signs that 2021 house prices appear increasingly out of step with fundamentals….

Based on present evidence, there is no expectation that fallout from a housing correction would be comparable to the 2007–09 Global Financial Crisis in terms of magnitude or macroeconomic gravity. Among other things, household balance sheets appear in better shape, and excessive borrowing doesn't appear to be fueling the housing market boom.

Importantly, experience from the housing bubble in the early 2000s and the subsequent development of advanced tools for early detection and deployment of warning indicators—some illustrated in this analysis—mean that market participants, banks, policymakers and regulators are all better equipped to assess in real time the significance of a housing boom. Thus, they are in a more-informed position to react quickly and avoid the most severe, negative consequences of a housing correction.

QUICK HITS

• The U.S. House of Representatives is set to pass a bill legalizing marijuana. But it's unclear if the measure will go anywhere in the Senate.

• Scientists are trying to unlock the secrets of COVID-19 "super immunity."

• A large new study looks at claims about moderate drinking and heart health.

• Planned Parenthood is challenging Idaho's new law that bans abortions after six weeks of pregnancy.

• Pandemic policy turned schools into surveillance states.

• An Iowa school choice bill moves forward.

• Why is the U.S. Department of Justice (DOJ) so determined to ruin useful tech tools that consumers love? The DOJ "has breathed new life into an investigation of Google Maps to determine if bundling the service together with other Google software illegally stifles competition," Reuters reports.

• A Los Angeles collective is stepping in to do the work the city won't: