The Tenth Amendment Center has joined a coalition of 59 other organizations signing onto a letter to Google demanding improved transparency on geofence and keyword search warrants.

The letter is in response to the rising number of “novel” warrants and other court orders amounting to open-ended dragnet searches that give police access to private information belonging to thousands of innocent people.

The letter specifically mentions so-called “geofence” warrants. In practice, judges issue warrants authorizing police to search Google’s massive location tracking database for all of the phones within a given geographical area during a specific timeframe. According to the New York Times, federal agents first utilized the practice in 2016.

According to the Times, these broadly construed warrants help police pinpoint possible suspects and witnesses in the absence of other clues. Google employees said the company often responds to a single warrant with location information on dozens or hundreds of devices.

Police say this investigative tactic can help break cases open. But in fact, it unwittingly sweeps hundreds or thousands of innocent people into a criminal investigation. These individuals suddenly find themselves in police crosshairs merely for the simple act of walking or driving through a given location at a given time.

And of course, this kind of data is imprecise. The New York Times opened its report on geofence warrants with the story of an Arizona man whom police arrested in a murder investigation based on location data and other circumstantial evidence. He spent a week in jail before investigators realized they had the wrong guy.

The Google database known as Sensorvault holds detailed location records of at least “hundreds of millions of devices worldwide” dating back nearly a decade, according to Google employees interviewed by the New York Times. One employee told the Times the company has received as many as 180 requests for location information in a single week.

Police also increasingly seek “keyword” warrants that identify every user who searched for a specific keyword, phrase, or address. As the coalition letter states, “These blanket warrants circumvent constitutional checks on police surveillance, creating a virtual dragnet of our religious practices, political affiliations, sexual orientation, and more.”

According to Google’s submission in a court case, the company saw a 75-fold increase in geofence warrant requests between 2017 and 2019.

The coalition letter calls on Google to disclose more information on how and why police are presenting these open-ended warrants.

As a leading recipient of geofence and keyword warrants, Google is uniquely situated to provide public oversight of these abusive practices. We ask you to do just that by expanding your industry-leading transparency report to provide monthly data on the number of non-traditional court orders received, including granular information on geofence warrants, keyword warrants, and any analogous requests.

These open-ended warrants bear a striking similarity to Writs of Assistance issued by British judges in the years leading up to the American Revolution. These general warrants empowered government agents to enter private homes and businesses to search for evidence of smuggling. Writs of Assistance did not specify the place to be searched, nor limit what these government agents could search for. They never expired and were considered a valid substitute for specific search warrants. Writs of Assistance were also transferable to other officials. They basically served as a go anywhere and do anything permission slip for government agents.

These general warrants were an early flashpoint between the British government and American colonists in the years leading up to the War for Independence. While the modern location tracking warrants issued today by both federal and state judges don’t give police powers quite as broad as Writs of Assitance gave British customs agents, they come very close.

Greater transparency would take a first step toward limiting geofence and keyword search warrants. It would allow the public to see the scope and intrusiveness of these searches. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change.

Mike Maharrey

The 10th Amendment

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