Odd Colorado Ruling Upholds Internet Keyword Search Warrant
Court says the warrant was “constitutionally defective” but grants police a “good faith” exception.
What would your internet searches reveal about you if others could scrutinize and second-guess them? It's something to think about, given that the big search engines, like Google, store search histories and make them available to the authorities. In fact, as happened in a recently decided Colorado case, police can start from search terms of interest and pressure tech companies to surrender the identities of anyone who has surfed for specified keywords. The decision is chilling for anybody who has ever pondered their online history in the hands of a stranger—or who just cares about privacy.
You are reading The Rattler from J.D. Tuccille and Reason. Get more of J.D.'s commentary on government overreach and threats to everyday liberty.
Open Season on Internet Searches
"Today, the Colorado Supreme Court became the first state supreme court in the country to address the constitutionality of a keyword warrant—a digital dragnet tool that allows law enforcement to identify everyone who searched the internet for a specific term or phrase," Jennifer Lynch and Andrew Crocker of the Electronic Frontier Foundation (EFF) reported on Monday. "The case is People v. Seymour, which involved a tragic home arson that killed several people. Police didn't have a suspect, so they used a keyword warrant to ask Google for identifying information on anyone and everyone who searched for variations on the home's street address in the two weeks prior to the arson."
In the Seymour case, the majority opinion, written by Justice William W. Hood, III, conceded that the warrant was "constitutionally defective" because it lacked individualized probably cause. The majority found that defendant Gavin Seymour "has a constitutionally protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name and that, under both the Colorado Constitution and the Fourth Amendment, he also has a constitutionally protected possessory interest in that same history." Importantly, "law enforcement's copying of Seymour's Google search history meaningfully interfered with his possessory interest in that data and constituted a seizure subject to constitutional protection."
The majority also allowed that Seymour's "search history implicates his right to freedom of expression."
Ultimately, though, the four-justice majority ruled that "law enforcement obtained and executed the warrant in good faith, so the evidence shouldn't be suppressed under the exclusionary rule."
Wait. What?
"Until today, no court had established that individuals have a constitutionally protected privacy interest in their Google search history," the majority added.
It's more or less the same reasoning as you find behind qualified immunity. Sure, constitutional rights were violated. But how were the police to know? Well, maybe because the excessively broad nature of the search should have been obvious to anybody who has even a passing acquaintance with the Constitution.
It Was a "Fishing Expedition," Warns the Dissent
"The warrant was so facially deficient that it forecloses application of the good-faith exception to the exclusionary rule," Justice Monica M. Márquez objected in the dissent. "As the majority admits, the warrant was not based on individualized probable cause with respect to any Google user."
Law enforcement officers should have known they were engaged in a "fishing expedition," she noted.
Márquez went on to warn that "by authorizing law enforcement to rummage through the private search histories of a billion individuals for potential evidence of criminal activity, reverse-keyword warrants permit exactly what the Fourth Amendment forbids. They are tantamount to a high-tech version of the reviled 'general warrants' that first gave rise to the protections in the Fourth Amendment."
"I anticipate that reverse-keyword warrants will swiftly become the investigative tool of first resort," Márquez added. "Because, why not? It's a tantalizingly easy shortcut to generating a list of potential suspects."
Your Searches Could Attract Official Attention
That list of potential suspects could be anybody who drops a keyword or phrase into a search engine that retains such information (more about that in a moment). That might be a writer looking for "how-to" information on bomb-making for the purposes of a novel. It could be somebody looking up an unfamiliar term after hearing news of a horrific event. Or it might be a matter of satisfying curiosity. It shouldn't matter why you might want to expand your knowledge; you ought not run the risk of being scooped up and questioned by the cops just because you decided to find out what the hell "tentacle porn" is a few days before an especially bizarre crime. Or because you used the internet to learn about things some politicians don't like.
"Keyword warrants not only have the potential to implicate innocent people, they allow the government to target people for sensitive search terms like the drug mifepristone, or the names of gender-affirming healthcare providers, or information about psychedelic drugs," EFF's Lynch and Crocker point out. "Even searches that refer to crimes or acts of terror are not themselves criminal in all or even most cases (otherwise historians, reporters, and crime novelists could all be subject to criminal investigation)."
Both EFF and the dissent emphasize that the Colorado Seymour decision authorizing keyword searches is weak. The majority opinion offers plenty of ground for other courts to come to different conclusions that not only recognize constitutional protections, but also apply them without carving out exceptions.
Shield Your Online Activity
Until then, though, and because everybody's favorite search engine, Google, has a history of surrendering information on internet searches to the powers-that-be, it's wise to patronize competitors that don't maintain such histories. If the information doesn't exist, it can't be surrendered to the authorities.
"DuckDuckGo doesn't have any search histories by design and, bc of that, has had 0 search warrants (of any kind) since our founding in 2008," the internet firm boasted on what used to be Twitter in 2021. The company's respect for privacy is a major element of its marketing.
PC Mag rates Brave Search well, too, along with the company's privacy-focused Brave browser. In fact, linking a privacy-respecting browser with an anonymous search engine and, perhaps, a virtual private network that encrypts internet traffic is a good way to shield online activities from prying eyes. No approach is perfect, so check the effectiveness of your efforts with EFF's Cover Your Tracks tool.
Technology is evolving faster than the legal system can keep up. In fact, Colorado Justice Maria E. Berkenkotter, who ultimately concurred with the Seymour opinion, complained that "for the majority, tech seems not to have blended search and seizure so much as it has blurred search and seizure." Until the courts catch up with the changing world, whenever that may happen, anybody concerned about privacy will have to take steps to protect themselves where the law isn't ready to step in.
