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Geofence warrants: a notably controversial law enforcement tool

On Behalf of | Dec 4, 2020 | Criminal Defense |

It was a normal weekend day. You bought a few things at the grocery store. You visited a bookstore. You deposited a check at the bank. You went to a church meeting.

Did you know that law enforcers in Colorado and nationally can potentially track all those movements with precision in an after-the-fact matter? And that they might be able to do so even if they didn’t pay even scant attention to you all day?

That potential to secure information you might duly regard as private ratchets up to a certainty if you own a cellphone and are a Google account holder.

The geofence warrant universe: reverse location tracking

Surveillance that is decidedly high-tech can now track mobile device owners not only in their forward movements, but in detailing where they were in the past.

In fact, that monitoring capability is really nothing new. A recent American Bar Association article discussing the constitutional implications of reverse location tracking notes that federal authorities first exploited the technology back in 2016. Warrant requests authorizing use of the tool “have exploded” since then; reportedly, Google received about 180 requests for reverse tracking day on an average week throughout last year.

Critics sound alarm: fears surrounding geofence warrants

Reverse location tracking is actually a simple concept and an easily doable task for Google and other data-gathering companies. In a nutshell, it works as follows, conveyed through a quick hypothetical.

To wit: Someone is robbing banks, but the police don’t have any particular suspect. They counter that by asking Google to provide information on its account holders who were within due proximity of all the targeted banks within an hour of their being robbed. The provided data helps them identify and ultimately arrest a particular suspect.

Enforcement officials laud the tech assist and warrants enabling it use. The ABA piece underscores their enthusiasm and view that reverse location tracking “is a valid and valuable crime-solving technique.”

Unsurprisingly, critics – and there are many of them across a broad coalition — don’t see it that way. They criticize geofence warrants on myriad grounds, including these:

  • Lack of any particularized suspicion concerning a specific person, which is a constitutional warrant requirement under the Fourth Amendment
  • Culled information that has led to unwarranted police violence and false arrests
  • Intrusion on citizens’ rights to privacy in select spheres of daily life

The bottom line for many commentators stressing deep concerns with geofence warrant issuance is clear and simple: It too often invades privacy, fails the test of individualized suspicion and can easily yield wrong conclusions.