Is data collection Constitutional or Not?
With increasing frequency, law enforcement has been using unconstitutional, suspicionless digital dragnet searches in an attempt to identify unknown suspects in criminal cases.
I don’t have a problem with law enforcement using newly identified technology in specific cases or when specifically warranted but I don’t appreciate ‘fishing expeditions” that intrude on my freedoms. In most states warrants are required to contain specifics about the crime being investigated and specifics about what evidence is anticipated to be obtained. Open-ended warrants are not allowed, but as you will see, warrants are often never obtained. Arrest warrants will often contain a phrase, something like “a source, who has access and availability to the information to know……” when they really mean is that law enforcement came by the information illegally and they don’t want to admit it. Especially when they are not forced to admit the source was not a person.
I expect the right and freedom to come and go as I please. What happens if I live in an area near where someone else is involved in unlawful activity? Because I dome and go several times each day to my house or apartment and it’s located directly adjacent to a counterfeiter’s residence or the backyard neighbor is selling illegal Oxycodone every day. Because I am in close proximity to the offenders, my personal data might be captured in these collections of geographic information without my knowledge. While you might excuse the collection of this geofence collected data for one specific investigation, the problem is that the data doesn’t go away. It’s collected stored and it’s stored to be used days, weeks, or years in the future.
Unlike ordinary searches for electronic records, which identify a suspect, account, or device in advance of the search, reverse location searches essentially work backward by scooping up the location data from every device in hopes of finding one that might be linked to the crime. The searches therefore allow the government to examine the data from potentially hundreds or thousands of individuals wholly unconnected to any criminal activity and give law enforcement unlimited discretion to try to pinpoint suspect devices—discretion that can be deployed arbitrarily and invidiously.
For example, one abuse involves a “geofence warrant,” is primarily directed at Google. Through these warrants, police are able to access precise location data on the vast majority of Android device users and other Google account holders (including iPhone users). This data comes from wifi connections, GPS and Bluetooth signals, and cellular networks and allows Google to estimate a device’s location to within 20 meters or less. Using the data, Google can infer where a user has been, the path they took to get there, and what they were doing at the time. Google appears to be disclosing location data only in response to court-authorized warrants, but is this Constitutional or Not?
In 2021, it was learned more just how prevalent the use of geofence warrants has become. Over the summer, Google released a transparency report showing it had received approximately 20,000 geofence warrants between 2018 and 2020. The vast majority of these warrants (95.6%) came from state and local police agencies, with nearly 20% of all state requests coming solely from agencies in California. The report also shows that many states have ramped up their use of geofence warrants exponentially over the last couple of years—in 2018, California issued 209 geofence warrant requests, but in 2020, it issued 1,909. Each of these requests can reveal the location of thousands of devices. Geofence requests now constitute more than a quarter of the total number of all warrants Google receives. This is especially concerning because police are continuing to use these warrants even for minor crimes. And, as The Markup discovered following Google’s report, agencies have been less than transparent about their use of this search technique—there are huge discrepancies between Google’s geofence warrant numbers and the data that California police agencies are disclosing to the state—data that they are explicitly required to report under state law.
Secondly, you might consider the abuses permitted through the use of Aggregated App-Generated Location Data. type of reverse location search, the government is able to access location data generated by many of the applications on users’ phones. This data is purportedly de-identified and then aggregated and sold to various shady and secretive data brokers who re-sell it to other data brokers and companies and to the government. Unlike geofence warrants directed to Google, neither the data brokers nor the government seems to think any legal process at all is required to access these vast treasure troves of data—data that the New York Times described as “accurate to within a few yards and in some cases updated more than 14,000 times a day.” And although the data brokers argue the data has been anonymized, data like this is notoriously easy to re-identify.
In 2020, several federal agencies, including DHS, the IRS, and the U.S. military, purchased access to this location data and used it for law enforcement investigations and immigration enforcement. In 2021, we started to learn more about how this data is shared with state and local agencies as well. For example, data broker Veraset shared raw, individually-identifiable GPS data with the Washington DC local government, providing the government with six months of regular updates about the locations of hundreds of thousands of people as they moved about their daily lives.
These are but a few of the types of First Amendment and Fourth Amendment violations that are at the forefront of the news today and I don’t think we have seen the last of situations where we have to decide if they are constitutional or not. They aren’t going away and if they are allowed to continue unabated, you won’t be safe anywhere.