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Court Upholds "Geofence" Warrant for Information on Which Phones Were Near a Crime

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From In the Matter of Search of Information Stored at Google, 2021 WL 6111531, decided last week by Magistrate Judge Michael Harvey (D.D.C.); I unfortunately couldn't find a free version available online (the case is sealed on PACER), but here's an excerpt:

Imagine a homicide in an alley caught on a nearby surveillance camera. The video is clear enough to see the attack, but too grainy to identify who did it. It is obvious from the video, however, that the perpetrator is checking his cell phone as he walks out of the alley. Having determined the location and time of the killing from the video, would it be lawful for the police to obtain a warrant leveraging the tracking capability of mobile devices to identify whose cell phone was in the area of the crime when it occurred? On October 6, 2021, the Court was presented with a warrant that asked that question, albeit not in a homicide case. {The Court granted the government's request to seal the warrant application because the criminal investigation is not public and revealing the existence of the warrant could adversely impact the government's investigation, including by causing the subjects of the investigation to flee or destroy evidence. Accordingly, the public version of this memorandum opinion will not disclose facts that may identify the government's investigation or the targets of it.}

Commonly referred to as a "geofence" warrant, the government's application asked the Court to direct technology company Google to identify, through a multi-step process, the cell phone users that crossed into a defined geographic area around where the criminal activity under investigation occurred.

Though geofence warrants raise a number of important constitutional questions, there is not much federal caselaw discussing their legality. As of the date of this decision, the Court could identify only four federal [District Court] decisions, three of which denied the geofence warrant under consideration. That seeming reluctance to grant such warrants does not appear to have slowed their acceptance by other courts and their use by law enforcement. According to a recent report, Google received over 11,554 geofence warrants in 2020, up from 982 in 2018; as of August 2021, they comprised nearly a quarter of all warrants served on Google. Each of those warrants was authorized by a judge. So, it would appear that many more geofence warrants are being granted by courts than denied….

Soon after the advent of smart phones with the capability to track the location of their users, law enforcement sought warrants, or other legal process, to obtain the Global Positioning System ("GPS") data such cell phones collect to track their users who were known to be engaging in criminal activity. Often referred to as "GPS warrants," such warrants are, at this point, routine. They are frequently authorized, for example, to permit law enforcement to track a known or suspected drug dealer's cell phone to assist in locating the dealer's points of sale, drug stash houses, suppliers or co-conspirators.

The warrant before the Court is different. It is what has been termed a "reverse-location" warrant: the perpetrator of the crime being unknown to law enforcement, the warrant identifies the geographic location where criminal activity happened and seeks to identify cell phone users at that location when the crime occurred. The "geofence" is the boundary of the area where the criminal activity occurred, and is drawn by the government using geolocation coordinates on a map attached to the warrant…. The geofence is also bound by a time window dictated by when the crime is believed to have occurred (for example, between 1:00 p.m. and 1:15 p.m. on February 15, 2021)….

The cell phone location information Google collects [from Google OS phones and other phones running Google apps] is usually quite accurate—to within 20 meters, according to Google…. However, the location information Google collects is not perfectly precise, and includes a margin of error. Although the margin of error for each device depends on the quantity and quality of the location information the device transmitted to Google, Google says it aims to accurately capture the location of "at least 68% of users." Simply put, when Google searches its servers for the devices within a defined location boundary, a device that is outside of the boundaries of the geofence may be listed as within the boundaries of the fence due to imprecision in calculating the device's exact location….

The final piece of the puzzle is connecting the location data Google collects back to a particular user. According to the warrant affidavit, Google does this by collecting a phone user's information when the user registers for a Google account. In the registration process, the user can provide Google with their name, physical address, email address, and bank information, among other identifying information. The account registration process is critical because many of Google's key application and features "are accessible only to users who have signed into their Google accounts" ….

To avoid exposing the details of an ongoing criminal investigation, the Court will only generally describe the government's geofence warrant application. The geofence data sought in this case covers a shipping center, where the government alleges federal crimes were committed…. To illustrate the geographic area where it seeks Google's location data, the government has drawn a triangle on a satellite map included as an attachment to the application…. [The area of the triangle appears to be] up to 875 square meters….

The government seeks a total of 185 minutes of geofence data for the geofence area. The 185 minutes are split into segments ranging from 2 to 27 minutes on 8 specified days over a roughly five-and-a-half month period, corresponding to the criminal activity under investigation…. The government can be relatively precise about the data it requests because it has obtained (via subpoena) CCTV footage from inside the shipping center showing the criminal activity as it occurs. The government represents that the footage shows suspects using cell phones—and in some cases more than one phone—when they engaged in that activity….

The government proposed a multi-step process for obtaining the geofence data from Google….

  1. Using Location History data, Google will identify those devices that it calculated were within the [geofence area] during the course of the time periods laid forth in [the warrant].
  2. For each device: Google will provide an anonymized identifier that Google creates and assigns to device for purposes of responding to this search warrant; Google will also provide each device's location coordinates along with the associated timestamp(s), margin(s) of error for the coordinates (i.e., "maps display radius"), and source(s) from which the location data was derived (e.g., GPS, Wi-Fi, Bluetooth), if available. Google will not, in this step, provide the Google account identifiers (e.g., example@gmail.com) associated with the devices or basic subscriber information for those accounts to the government.
  3. The government will then review this list to identify devices, if any, that it can determine are not likely to be relevant to the investigation (for example, devices moving through the Target Location(s) in a manner inconsistent with the facts of the underlying case).
  4. The government must then, in additional legal process to the Court, identify the devices appearing on the list produced by Google for which the government seeks the Google account identifier and basic subscriber information.
  5. In response to this additional legal process, the Court may then order Google to disclose to the government the Google account identifier associated with the devices identified by the government to the Court, along with basic subscriber information for those accounts….

The court then analyzes the legal issues in detail, and concludes:

Given that most of us have our cell phones by our side most of the time, their power to constantly monitor their own location has essentially turned them into highly-accurate, personal tracking devices, identifying our location wherever we are in the world to within 20 meters. For better or worse, this feature that makes mobile devices useful to us—that gives us directions when we are lost and helps us find our phones when they go missing—leaves a digital trail behind us, the disclosure of which many would consider an invasion of privacy.

Unsurprisingly, our phones' ability to trace our steps has also proven of great value to law enforcement when trying to determine who was at a particular location when criminal activity occurred. It is that tension between privacy concerns and legitimate law enforcement interests the Fourth Amendment seeks to address, and which warrants careful consideration of constitutional requirements when assessing the lawfulness of geofence applications. These competing interests are assessed in recognition of the Fourth Amendment's prohibition of only "unreasonable" searches and seizures.

Applying those Fourth Amendment principles here, the government has established probable cause that criminal activity, which it has identified, occurred within the proposed geofences, and that evidence related to that activity, which it has specified, will be found within them. Further, it has carefully limited the scope of the geofences to the approximate location where the criminal activity occurred and timeframes during which it took place. The fact that the geofences may reveal the location information of non-suspects does not render the government's warrant unreasonable given that the geofences and the … protocol have been crafted to minimize privacy concerns to the greatest degree possible while also preserving "the fundamental public interest in implementing the criminal law." …

NEXT: No “Social Worker Exception” from the Fourth Amendment for Home Searches by Child Protection Officials

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  1. I did not see anything about weighing the severity of the crime against the privacy interests of people being monitored. Murder, burglary, littering, pointing a finger at the mayor in a manner that might be considered imitating a gun. Rubber stamp them all.

    1. Strikes me that, if a law is constitutional permissible at all, the relative weighting of the offenses is strictly a legislative job. So, no, there shouldn't be anything like that.

      1. >Strikes me that, if a law is constitutional permissible at all, the relative weighting of the offenses is strictly a legislative job.

        ?? The 4th Amendment specifically references "unreasonable searches," which is inherently a balancing test.

        More broadly, it's hard to think of a modern Constitutional Law case that didn't involve some form of balancing test.

        1. But is it a "Is it reasonable to issue a warrant over littering vs homicide?" judgement, or is it a, "Is it reasonable to think this warrant would be productive?" judgement?

          The latter, I think. An "unreasonable" search is a search that is not reasonably related to solving a crime. Where the crime might be a pretext for the search, or the odds of the search being productive are extremely low.

          1. Correct me if I'm wrong, but haven't the courts been approving searches even when it's obvious that the crime was just a pretext?
            My impression is there are plenty of people in prison for drug possession after a search based on something like a wheel touching the dashed white line between lanes, suspicion of dust on taillight lens, or signalled a turn but not far enough ahead of the turn in the opinion of the officer, etc?

            1. Pretext stops are generally warrantless searches. There was a case in last week's "Short Circuit" where the FBI got a warrant that was arguably pretextual. The particular kind of warrant could only be used in drug cases. Chicago police were suspected of stealing both drugs and cash. The warrant was good because the agents disclosed enough information, and the warrant could have led to drug evidence even though it did not.

          2. Both, I thought. The intrusiveness of the search has to be balanced with the seriousness of the crime and likelihood of getting useful information.

            1. That's certainly not the inquiry set out in Fed. R. Crim. 41(d)(1), which requires the judicial officer to issue the warrant if probable cause exists. (I'm not aware of any state with a different rule, although there could well be some.) Do you have some authority for your position that this arrangement is unconstitutional?

              1. Without doing actual research...I'd probably start with some thing like Michigan v. Sitz.

  2. I would be concerned about the effects of 'motivated reasoning' used to interpret the results. The next thing is, what secure communication can you obtain that cannot be tracked by a third-party? Are we really going back to one-time cipher pads? 🙂

    1. Given storage capacities, why not?

      1. Which themselves would need to be transmitted using one-time pads. Which will work out as it would be compresed.

        1. This little sub-thread has me confused. One time pads require both ends of the conversation to have a copy of the same, secret, one time pad. You could conceivable pair two phones and supply them with one time pads, but they could only communicate with each other. There wouldn't be any way to make a secure call to anyone new.

          And Commenter_XY's original comment was 'tracked by a third-party'. Tracking, in the geofence context, doesn't have anything to do with whether the content of calls/messages is encrypted. I'm getting out of my depth here, but there are hard to track radio technologies - spread spectrum, frequency agile, yadda. But those are point to point, unlike the cell phone system. You can't run a cell phone network without the network at least knowing which tower(s) you are near.

          The added E911 location features, etc, are there because they were mandated. It wouldn't make sense to mandate that you transmit E911 info that the cell tower couldn't decrypt.

          If you want to remove the possibility of retrospective geofence tracking, I think you'd have to forbid providers from maintaining historical location info.

  3. Let's consider another application: Are there federal or DC geofence warrants requested for the area of the capitol building for January 6, 2021? Isn't this precisely what geofencing is for? Namely, the identification of device identities in a specific place at a specific time?

    1. I recall seeing cell phone location data mentioned in some of the law enforcement affidavits at https://www.justice.gov/usao-dc/capitol-breach-cases . I don't think they needed Google's help. There is a lot of high quality surveillance video on top of the cell phone and wireless infrastructure.

      1. The whole area of the Capitol is covered by "Stingray" type devices; You should assume that, if you're there, all your communications via phone are going through the government's hands, and possibly being recorded, certainly metadata logged.

        1. Some of those Stingrays are even owned by Americans!

      2. " There is a lot of high quality surveillance video on top of the cell phone and wireless infrastructure. "

        Some of the participants iced that layer cake by boasting publicly on Twitter, Instagram, and Facebook; during telephone calls with acquaintances; with voicemails (some of which seem to have been provided to authorities by civic-minded citizens); while asking others to conceal evidence (again, sometimes reflecting poor judgment with respect to choice of confederates); and in other manners similarly helpful to law enforcement authorities.

        I have not heard about anyone sporting a 'I Invaded the Capital on Januery 6' forehead or chest tattoo yet, though, which is somewhat surprising.

        1. A t-shirt that should be sold:
          "Mom and dad invaded the Capital, and all I got is this lousy t-shirt."

          Feel free to steal this idea.

    2. Yes, there were. And there were "explainer" articles on how the Feds would use ever-broadening sets of warrants to try to identify who was using "burner" phones. https://mobile.twitter.com/tomiahonen/status/1453797787452297225 is a Twitter thread on it.

  4. That actually seems like a reasonable protocol to protect the privacy interests of non-suspects who just happen to be in the area. My primary remaining concern is that the protocol pushes rather a lot of the analytic work off to Google. And while Google is big enough to say that the cost is trivial, there is no limiting principle to this ability to force others to be agents of law enforcement.

    The "American rule" may be a long-standing legal tradition but it is fundamentally unfair to third parties.

    1. >That actually seems like a reasonable protocol to protect the privacy interests of non-suspects who just happen to be in the area.

      IDK. Step 'c' assumes a lot of good faith, and there doesn't appear to be any judicial review until step 'd'

      It's also worth remembering that it's frequently (normally?) pretty easy to deanonymize "anonymized identifier(s)" (i.e., the data obtained at step 'c') using data analysis...particularly sparse data sets like this is likely to be.

    2. The problem is of course they're reasonable when trying to set a precedent. But once the power is fully accepted, it will become unreasonable and abusive quite quickly.

      1. That IS unfortunately predictable. And, what's more, the time from reasonable to unreasonable application is steadily shrinking.

      2. Under Clinton, they passed a terrorism expanded surveillance law, and swore it was only for terrorism.

        They immediately used it against drugs. When asked, they didn't bother with the sophistry drugs are akin to terrorism. They just said, "Ha ha! The law doesn't specifically say terrorism only!"

        Do not trust scum sneaking things in through the law.

    3. That actually seems like a reasonable protocol to protect the privacy interests of non-suspects who just happen to be in the area.

      How about the privacy interests of mistakenly-presumed suspects, who just happen to be in the area? This geofence stuff could be really be bad news for them. For a hypothetical example, reach back to the Vietnam era, when a lot of folks got FBI files just for demonstrating against the war.

      So some harmless soul is perpetually suspect, on the basis of one of those files. He finds himself unawares inside a geofence centered on a cafe, where unbeknownst to the suspect, some real bad guys are plotting to blow something up. Which they do, killing someone in the process.

      Consider what might happen during an ensuing prosecution. The attorney for one of the bad guys will get discovery, which discloses the presence of the hapless, uninvolved, former anti-war picketer. The attorney wants an alternative theory of the crime. He will say that guy was the mastermind and perpetrator, and his client just a minor figure worthy of a plea bargain. See any problems with that?

      1. This may be the first time I've seen it suggested that the government should be restricted in information-gathering techniques because the results might be too helpful to criminal defendants.

        1. Stephen certainly has a type of concern doesn't he.

          1. What type of concern would that be?

    4. Not sure I agree.

      The govt's warrant request covers 875 meters, or roughly 2,800 feet, for a 185 minute time frame broken up over 5 1/2 months. In other words, the warrant covers the entire geographic area surrounding a shipping center for discrete times covering a 165 day time period. This in turn probably means that every person who worked for the shipping center or at the shipping center, along with visitors, during that 165 day time frame becomes a suspect under this warrant request.

      The gov't also indicates that after they get an initial list of devices from google, they can fine-tune the list and remove those devices from further consideration that don't meet other facts already in the govt's possession (i.e. more exacting location info along with time correlation) . The fact that the gov't is capable of fine-tuning a general list provided to it by google in the first place indicates that the initial parameters of the search warrant is already too broad.

      All of this makes the warrant in this case sound more like a general warrant than one properly limited in scope to probable cause that, "particularly describes the place to be searched and the persons or things to be seized". 875 meters over a 165 day time frame is way too broad a geographic net when it's clear the feds already have fairly exacting time and location information at their disposal.

      1. The 4 dimensional area a priori defined by a separate video analysis seems discrete enough, especially as the time dimension has 8 separate days. If they get 8 different phones, one on each day, then they were not seeing the same person on the video, and no probative value. If they get one phone that meets each of the 8 time periods within the physical space, then that seems fairly strong, and worth following up.

        But this has got to be subject to fixed goal posts; if they get a number of temporal hits between 1 and 8, then they don't get to amend the data when attempting to present to a jury or share with defendant's attorney. If the crime/criminal is defined by time and place, then missing more than one or two google data points looks like prima facie reasonable doubt.

      2. "[The area of the triangle appears to be] up to 875 square meters…."

        Not a strip of 875x1 meters (1.1 yards for about half a mile, but a triangle enclosing 875 square meters, if the description is accurate.
        A square of 875 square meters would be about 44 x 44 x 44 meters. Twirly in the morning to be doin geometry. But the dragnet is not cast as broad as you think in this case.

        1. The shape does make a big difference -- as the court explained, every position estimate comes with an uncertainty bubble, and unless a phone is using GPS, those can be tens of meters or more in size. The government will get results for every phone whose uncertainty bubble overlaps the shape they specify, which widens the search considerably.

          For example, my phone will often initially estimate I am somewhere in a circle around a particular cell tower, then snap to a more precise estimate as GPS works. That first circle might be a mile across, and not centered near me.

      3. On the other hand, how is this different than requesting footage from "security camera X" other than the fact that you have names and phone numbers instead of "white guy in blue hoodie number 3"? A security camera will obviously gather information about innocents as well as any guilty party. However, that doesn't undermine its use to identify criminals.

        Yes, I see the slippery slope issues, but the request as-is seems quite reasonable. Especially as the police are doing it with a warrant instead of on their own authority.

        1. Suppose you are walking home past an alley at 2AM. Tomorrow a murder victim is found in the alley and the coroner puts the time of death as 1AM to 3AM.

          If the police get video from a camera covering those times, they will see you walk by, and hopefully also the culprit doing the deed at 1:30 or 2:30. The camera catches everyone that walks by.

          OTOH, what if you have a cell phone and the perp didn't. As it turns out, your cell phone was the only phone in the area at the time. Now the police are looking at you, asking you to prove you weren't the killer, and you can't really prove a negative.

          These aren't completely disjoint examples - if the camera wasn't at the alley, but a block away, then the situations are more similar. But cameras catch everyone who passes by, and cell phone tracking only tracks people with phones. That makes it a little riskier for the innocent with a phone.

          (I wonder if crooks will figure out the obvious strategy of always carrying their phones, except for leaving them on the nightstand when out committing crimes. "It couldn't have been me, I was home in bed, just look at the cell phone data". For even more bonus points, have someone drive your phone to a distant city while you do your crimes.)

  5. Because criminals don't use burner phones with fake identities.

    Does someone in 2021 not know the gov can get this info?

    1. You have criminals who know enough to use burner phones, (A lot of them are in the DOJ, apparently.) but you have a lot of criminals who are pretty stupid.

      It's part of why they're criminals, they have bad judgement.

    2. Some do, but it is pretty hard to not tie the burner phone to yourself. Consider:

      1)When you buy it for cash, wearing your mask, dark glasses, and a hat, make sure the store video doesn't catch you walking back to your car. If you park a block away, watch for ring doorbells, traffic cams, ...
      2)Never use the phone from anywhere tied to you - home, work, or your car.
      3)Obviously, you never call any phones that aren't also burner phones. That one call to tell the missus you'll be late for dinner ...
      4)As a consequence of 2 and 3, you can't just go for a hike in a popular but camera free park and call up your buddy's burner phone on a whim ... his phone needs to be powered off unless you made prior arrangements for him to also be hiking in a camera free place when you want to talk.
      5)Etc, etc, etc.

      So if you are planning something like 6Jan or one of the California smash-n-grabs, sure, you can carefully buy a set of phones, hand them out to only be powered up once you get to the Capitol/jewelry store, and ditch them afterwards.

      That's a lot of work for the average crook, and only works for a subset of crimes. A dope dealer, for example, can't give burner phones to all his customers.

      It seems sort of analogous to 'why don't burglars pick locks'. Picking locks isn't rocket science, but not many burglars will go to the trouble.

      1. Yes, Dexter would have a hell of a time nowadays.

    3. If you think that it's unusual for criminals to carry their cell phones with them while committing crimes, you clearly don't practice criminal law.

  6. Eugene Volokh apparently supports the rights of cyber stalkers, cyber harassers, cyber criminals who use "Free Speech" as an excuse to dox, harass, stalk victims who have no way of fighting back. Eugene Volokh has been fighting every single state law that would help protect victims of cyberstalking and doxing. He has no consideration for the disruption to the lives of the victims from disclosure of harmful, private, or other malicious content online. He has no consideration for the malice and intentionality of the criminals who hide behind VPNs and perpetuate their harassment campaigns anonymously. If you look through his works and articles, he has never mentioned the disruption and impact to victims of cyberstalking and cyber harassment, many who are driven to suicide.

    To Eugene, the entire spectrum of human conduct online falls under "Free Speech", almost no exceptions. Doxing, targeted harassment, stalking, disclose of private information about people to torment, even blackmail, are all perfectly legal to him because they artificially involve speech. He refuses to label these abhorrent behavior for what they are - courses of conduct rather than speech, crimes against human safety, privacy, and dignity. It is likely that he probably gets bribes from Google and Big Tech to fight against the passing of any modern laws that would help regulate harmful content on the internet and do something to stop cyberbullying and help victims. This man appears to have no empathy or morals.

    Not once in any of his papers or articles does he even mention the impact of cyberstalking to victims and the need for Congress to legislate. Not once does he even mention that the internet has made it too convenient to invade people's privacy for malicious reasons and privacy laws need to be updated to counter this intrusion. He is paid by Big Tech behind the scenes to shill First Amendment expansionism to the point where it covers almost all criminal behavior online.

    1. You might want to put at least a little emphasis on your actual argument, and less on personal attacks and unbacked assertions.

      1. I find it amusing this guy complaining about cyberstalking and harassment is... cyberstalking and harassing someone.

        1. An idiotic comment on in the comments section is not cyberstalking or harassment. Thats part of the problem, people have lowered their sensitivity threshold to where they feel anxiety about anonymous internet posts. I doubt victims have "no way" to fight back. True threats are always a crime.

          1. The same commenter posted the same steaming pile of dreck on a different post by EV this morning, which I think makes the accusation of cyberstalking and harassment fair.

            1. annoying yes. Cyberstalking, no. use the mute user feature.

              1. Muted. I've only had to mute about three posters to make the discussions a lot more enjoyable.

              2. Under the popular usage of the term - following someone around, and/or repeatedly replying to their posts with (unrelated) negative material - it certainly is cyberstalking.

                It may not meet the legal definition in most places... but that's the funny here! This guy is complaining that Volokh is defending the people whose actions he thinks don't break the law from accusations of breaking the law. And yet here he is, doing the same thing he complains about, and he can do it because of the same reasons EV gave.

                You don't find the doublethink amusing?

        2. Toranth, lol "cyberstalking?" Oh so all of a sudden I am a "cyberstalker" when I speak the truth about Eugene Volokh and how his efforts to strike down laws that would hold Big Tech accountable for harm to victims of online abuse, I'm being called a "cyberstalker"? Based on Eugene's own premise, I am merely exercising my "precious, valuable" Free Speech rights by exposing the truth about his actions and motivations.

          I'd challenge him to take legal action against me. He can't. My words are protected by Free Speech.

          1. Apparently, to the First Amendment absolutists on this forum, it's "cyberstalking" when you post something against Eugene Volokh that they don't want to hear, but strangely the thousands of real life cases of online harassment (that actually is cyberstalking) is not considered cyberstalking because Eugene Volokh (taking money and bribes from Big Tech who don't want regulations to hurt their profits) says so. Eugene is god right, he makes the calls right? Has he experienced cyberstalking? Is he qualified to talk about these things? Or is he just a "First Amendment" armchair philosopher who just sits back and cites Free Speech nostrums, never having experienced the detrimental and life-changing impact of cyberstalking himself?

            I don't think Eugene Volokh is qualified. Shame for a so called "child genius" who graduated from college at 15 years old. Lots of nostrums and very little common sense and empathy.

            1. "Apparently, to the First Amendment absolutists on this forum, it's "cyberstalking" when you post something against Eugene Volokh that they don't want to hear,"

              What makes it look like cyberstalking is when you post the exact same off-topic comment on every single article by Eugene Volokh.

              You had your say, there is no legitimate reason to keep repeating it on every article.

              1. Anybody bothered by repetition abandons this blog after a few days . . . two weeks, tops.

              2. MatthewSlyfield, again you bend over backwards to characterize my words as "cyberstalking" Volokh when if the same thing, or even worse, happened to real victims, Volokh would be swooping in to argue that the victim was impeding on the cyberstalker's "freedom of expression." You hold a double standard when it comes to "cyberstalking" for issues that you don't want to hear, versus issues that are not related to you.

      2. If there is any actual argument in there.

        Any screen which starts off like this one drives me away halfway through the first sentence.

        1. I am pretty sure there is no actual argument in there, which is why I suggested "at least a little emphasis" on it.

    2. You've mistaken this blog for somewhere you're wanted.

    3. " To Eugene, the entire spectrum of human conduct online falls under "Free Speech", "

      There are two obvious exceptions to this point:

      1) pseudonymity in the context of a right-wing culture warrior seeking to conceal identity

      2) making fun of conservatives, or using certain puns to criticize conservatives, or disparaging conservatives at the Volokh Conspiracy

      In those contexts, Prof. Volokh has repeatedly and vividly chosen censorship and secrecy.

      Which he is entitled to do. Hypocrisy and partisanship are not unlawful.

      1. You complain about censorship, but you're still here. Oh well. Carry on, Arthur - so long and so far as your betters permit.

        1. I am here. But I am forbidden to use certain words here. And comments containing other words vanish, removed by Prof. Volokh. No obscenity, mind you. Just words that criticize or make fun of right-wingers.

          Artie Ray is not here. He was banned, for making fun of conservatives a bit too deftly.

          You don't seem to mind the right-wing censorship repeatedly imposed at this blog, Davy C. I am confident Prof. Volokh welcomes your sycophantic support. Clingers need to stick together in modern America, right?

          1. Haha so this forum is censored by Eugene Volokh himself right? As long as you say what he wants to hear he'll let you speak, otherwise he censors you.

            1. His playground, his rules.

  7. The rule I would favor, which I understand will never be adopted, is that the government would need to have specific probable cause for each cell phone it tracks. It should never get to know the location of anyone without that probable cause.

    1. Why not? My grade-school insight into the 4A seems to recall a warrant requirement for a particular description of a person to be seized. Seems like a useful protection against catching the wrong person in a dragnet.

      1. My grade-school insight into the 4A seems to recall a warrant requirement for a particular description of a person to be seized.

        What are you referring to?

        1. What are you referring to?

          The text of the 4A. Too naive?

          1. My question is what you're envisioning when you talk about seizing "a particular description of a person".

            1. I don't see how that even applies here. There is nothing at all in the geofence notion that describes any person—no name, no physical description, no racial information, no height, weight or age, no hair color or condition, no eye color, no clothing description. In short, not one falsifiable bit of information sufficient to free an innocent person if that innocent happens to be in the wrong place at the wrong time, or, alternatively, if the questions of place and time have become mistakenly muddled during the warrant application process.

              1. Two step process: They have probable cause that the service provider can identify the people who they would have probable cause to believe were perps or witnesses.

                1. No they don't. At either stage, none of the people they turn up can be distinguished from any of the others by any information the government used to get the warrant. There is no way for an innocent person who was actually there to challenge the warrant, because no specific information identifying that person was used to single him out.

      2. Um, why are you talking about people being seized? This is a search warrant, not an arrest warrant.

        1. Please Nieporent, this is not a case for pedantry/pretense. Do you really think the contents of the phone figure into this at all? The OP hypothetical posits a killer. If they had any notion of the particular identity of a person they were looking for, which a warrant requires, they could serve a warrant for his metadata and use that to put him at the crime scene—without going to the trouble of defining the geofence. The only reason they need the geofence is because this is a dragnet, for unknown people.

          1. No; it's a dragnet for data. (But, no, not the contents of any phone; the location of phones.)

            I've noticed that people who don't really understand a topic like to describe actual knowledge as "pedantry." But, no, only an arrest warrant requires that "the particular identity of a person they were looking for" be identified. A search warrant requires that the place being searched, and the things being seized, be identified.

    2. I agree with you that this rule will never be adopted, but I'd be interested in hearing why you think it would be a good idea if it were.

      1. Basically, equilibrium adjustment. I don't think the cops should have any greater power to invade privacy due to invention of cell phones. Whatever they didn't get to know back then, they don't get to know now.

    3. Well, let's give a counter-example.

      The cops know that the thief/murderer entered a secure area. Therefore, they ask for a building's badge log to see who was in the building at this time. That would be routine, right? How is this different?

      This only identifies what people were there and doesn't say anything about them being involved. Just like security cameras aren't invalid because innocent people are also shown in the footage.

      The fact that these logs could indicate dozens of innocent people isn't relevant because this is just an investigation. If they tried to show that to a judge or jury without anything else, it would be laughed out of court.

  8. " I unfortunately couldn't find a free version available online (the case is sealed on PACER), but here's an excerpt: "

    Would any of those who were insisting yesterday that the New York Times be dragged before a judge to reveal its source(s) wish to opine concerning the Case Of The Professor Publishing A Sealed Opinion?

    Carry on, clingers. Your betters -- the liberal-libertarian mainstream -- will let you now how long and how far, as always.

    1. As indicated quite clearly in the order itself, this version is not sealed (which is presumably how it ended up on Westlaw to begin with).

      1. I kinda wonder about the judge releasing as much as he did ... if I had been committing crimes in a shipping center in the district the judge serves over the relevant period, I'd be fleeing or destroying evidence or hiring a lawyer or something 🙂

        1. Hmm... can we get a "sealed" opinion about a warrant involving bribing Congressmen, and watch who panics?

  9. The D.C. District Court, huh? Under seal? I wonder if this might have something to do with the greatest crime of all time, which the FBI boasts is its largest investigation ever? Maybe, maybe not.

    That aside, if an individual voluntarily goes out in public areas, where anyone can see him, it seems difficult to claim he has a privacy interest in his mere presence there. I don't see much difference then a warrant to see if you used your credit card in a particular area.

    Tip for the criminal beginner: if you plan to commit a crime, don't take your cell phone. If you absolutely must take a phone, pay cash for a $20 throwaway burner phone that you can buy pretty much anywhere.

    1. "The D.C. District Court, huh? Under seal? I wonder if this might have something to do with the greatest crime of all time, "

      I thought the opinion referred to a shipping facility being the location of interest to law enforcement authorities, but I read it quickly.

      Are you not a fan of prosecuting people who invade the Capitol and disrupt government functions, clinger? What has made you so disaffected and antisocial, other than being soundly defeated by your betters in the culture war?

      1. Many arguably are in favor of it, and always have been, but, having seen government refusing to do so from two summers ago to today in certain cities, may have thought to join the party to register their own disappointment at policies.

        I assume you will agree that two wrongs don't make a right.

    2. Unlikely that it has anything to do with the US Capitol. "The geofence data sought in this case covers a shipping center, where the government alleges federal crimes were committed...."

      Unless one loosely uses a slang meaning of "shipping", I don't think the Capitol qualifies as a shipping center.

  10. How about a similar warrant for the area around the NY Times building on a particular day?

    How about a request from China for info on who used their phones at a United Nations meeting?

  11. If you were in DC 01/05/2020 - 01/07/2020, for any reason, you know Geofencing Warrants are like dragnets. Wrong place, wrong time?

  12. US v Chatrie has been awaiting a suppression ruling on this issue since June. E.D.Va.

    My state court tossed a warrant where the search included all or part of several neighboring houses instead of being limited to the property of a burglarized house.

  13. Layman's question; "probable," in, "probable cause," must mean more likely than something. What is the something?

    1. Perhaps not as probable as I would have guessed.

      No idea if that is a reputable/current source, hopefully the resident lawyers can confirm or deny.

      1. Thanks, Absaroka, interesting link. As I read it, and assuming it's a good source, it does not do much to justify geofence warrants. To me, those still look arbitrary.

  14. Eugene Volokh's articles and arguments, if you strip them to its core, is basically trying to destroy all types of regulations and law that would make the Internet a bit safer and prevent crimes like cyberstalking, cyberharassment from destroying victims' lives while preserving Free Speech. It's a balancing act. Free Speech is important, but so is individual privacy and protection from malicious behavior.

    Eugene Volokh's view is, apparently, that most online harms like doxing, harassment, stalking are perfectly simply because they involve "speech." He uses the First Amendment has a liability shield to absolve almost the entire spectrum of human conduct (including the vile, abhorrent, and malicious) from not just criminal liability, but also civil liability. He leaves victims of these crimes with no laws to defend themselves from purposely malicious individuals who aim to take advantage of these legal loopholes to destroy lives, and he probably makes a good amount of money from taking back-end bribes from Big Tech.

    If you notice, several of his papers support "Free Speech" and lack of "search engine liability" are funded by Google. The guy is taking money from Big Tech to fight against the laws that would hold Big Tech accountable for their intentionally condoning harmful behavior online. Eugene Volokh's analysis is inaccurate, harmful to society, and he treats victims of online crimes are collateral damage.

    1. The value in the first amendment is not value of any bit of speech itself, which can be wrong, stupid, offensive, mean, or arbitrary.

      The value is in preventing the powerful from silencing people. Even for "really good reasons", where "really good" is defined as what a charismatic politician with the gift of gab can whip the hoi polloi into a frenzy about briefly.

      The resurgance earlier this year about examining the "marketplace of ideas" was exactly what I predicted: an attempt to lessen the value of it, so as to justify restrictions on speech, as Radiolab proved in a broadcast debate.

      1. Krayt, how do you visualize the, "marketplace of ideas?" I have always thought of it as a hypothetical place where ideas compete with each other, on the basis of the merits of their contents. Lately, there seems to be a different view, that it involves something to do with people who compete with each other, to sell their ideas. Are you trending toward that latter view? If so, do you see how it can be antithetical to the former one? If the ideas compete, then the losing ideas will of course decline in circulation. If the people compete, the losing ideas can still come out on top, by dint of stronger backing. Which notion do you suppose better serves the public life of the nation?

      2. Krayt, the "free speech" system you are espousing will simply shift the burden of bad or malicious behavior to the victims. No system is perfect, but given the anonymous, global, instantaneous and permanent nature of internet speech, plus the reality that anyone can speak and it is unfiltered, SEOs can pick up on any mention of someone's name anywhere in the world with no filter for legitimacy, maliciousness, intent, I would argue that "speaking" on this medium should be balanced against individuals' personal privacy needs, the need for certain irrelevant, malicious "doxing" of their information (esp. by harassers) to be removed. It's only fair. Why is it fair for you to have a medium where any crazy person who is out to get you can post information about you purposefully to ruin your life, and yet that person gets all the "Free Speech" protections in the world while victims cannot fight back? It's not fair and doesn't balance the privacy v. free speech. You, your sycophants, and Volokh want a world where speech trumps all, regardless of maliciousness, intent, motivation, relevancy. I disagree, especially when internet links can be permanent and employers also rely on Googling someone. It's not fair that anyone can type anything they want about people but victims have no way to fight back, especially if their livelihoods, family, income and future are on the line.

        This is what's unique and new about internet communications, that Volokh just can't seem to grasp in his arguments.

    2. Holden C, can you cite specific Volokh papers funded by Google? Do you know any particulars? Or is this all just speculation?

  15. The court gives really short shrift to the accuracy issue here.
    They correctly identify that not all of the locations will be accurate (It says Google aims for 68%"), and some will appear be in the fence when they are not.

    A couple things:
    1. The 68% is not evenly distributed, because it depends on technology. If it's GPS, it's pretty accurate. If it's wifi points near you, less accurate. If it's cell towers, even less accurate. The availability of any of these will vary based on terrain, weather, etc.

    For an area where people are mostly indoors, the number of precise locations may be 15%. It makes a lot more sense to ask "How often do they get precise locations in this particular area*", rather than overall. Service providers of all sorts know the answer to this - that's how they know what they need to improve to get to 68% 🙂

    2. Because of how this all works, it should also be pretty trivial to properly exclude the non-precise locations, or those that have high rates of false positives (IE cell tower data).

    The court doesn't even seem to consider doing this. Thy instead say, without any evidence or citation, that the "protocol has been carefully crafted" to minimize these problems. At least from the cited portions, it 100% is not.

    1. Points well made.

  16. Presumably they're hitting Google for this data because cell companies typically can't provide anywhere remotely near the precision of location that the warrant specifies. 5G mmWave will change this in some narrow circumstances like convention centers and stadiums soon, probably not shopping malls in the near future. It's intended to allow cell phones to work at high speed even with ridiculous densities of people per square foot / meter and won't be deployed everywhere.

    In any case, does this open up some equal protection questions? I have an iPhone with no Google or Facebook apps installed, and location sharing tightly controlled on what apps and web sites I do use. I can still be loosely tracked via cell towers (you can just buy this data without a warrant), but typically within hundreds of meters or more (depending on where I am), not a meter or tens of centimeters like you can with location tracking from the phone itself.

    Therefore there is no way that this tracking mechanism can be used on me and any other people who pay a modicum of attention to these settings in anything resembling a worthwhile manner. Discrimination against the "Green Bubble" (iPhone users know what I mean) people? Sounds like it to me. In a way it makes sense because those plebs are more likely to be criminals anyway, but sooner or later we'll be saying: "First they came for the Green Bubble people..." (yes, I jest).

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