Court Rules Geofence Warrants Unconstitutional

 

Geofence warrants violate the Fourth Amendment, according to a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit.

U.S. Circuit Judge Carolyn Dineen King wrote in the decision that “geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment.”

“Of particular concern is the fact that a geofence will retroactively track anyone with location history enabled, regardless of whether a particular individual is suspicious or moving within an area that is typically granted Fourth Amendment protection,” King added.

Geofence warrants allow authorities to obtain a list of phones and phone owners who were present near a crime scene.

According to the National Association of Criminal Defense Lawyers, geofence warrants are a “type of reverse warrant where the government seeks to know who was within a ‘geofence,’ a defined physical area during a specific period of time.”

Some have voiced concerns that geofence warrants violate digital privacy, while others assert the practice is constitutional as internet users agree to share their location history with Google.

Describing users’ consent to opt in to location data sharing, King wrote, “Users are bombarded multiple times with requests to opt in across multiple apps,” explaining, “These requests typically innocuously promise app optimization, rather than reveal the fact that users’ locations will be comprehensively stored in a ‘Sensorvault,’ providing Google the means to access this data and share it with the government. Even Google’s own employees have indicated that deactivating Location History data based on Google’s ‘limited and partially hidden’ warnings is ‘difficult enough that people won’t figure it out.’”

 

Geofence data was previously used to find those present near the U.S. Capitol on January 6, 2021.

The FBI initially requested that Google “identify all devices in a 4-acre area” surrounding the US Capitol, to which Google located 5,723 devices that were affiliated with the 4-acre geofence. The bureau then gathered information on over 1,500 individuals, citing geofence data in more than 100 charges related to January 6.