ALBANY, N.Y. (Feb. 7, 2023) – A bill introduced in the New York Assembly would ban geolocation tracking and geofencing warrants. Passage of the legislation would not only protect privacy in New York; it would also hinder the growth of the federal surveillance state.
Asm. Michaelle Solages (D) and a large coalition of fellow Democrats introduced Assembly Bill 3306 (A3306) on Feb. 2. The bill is a companion to Senate Bill 217 (S217) introduced last month. The proposed law would ban the search of geolocation data or keyword data of a group of people who are under no individual suspicion of having committed a crime but rather are defined by having been at a given location at a given time or searched particular words, phrases, character strings, or websites. It would also bar courts from issuing reverse location search warrants and create a process to suppress any evidence gathered in violation of the law.
In effect, the passage of A3306 would end a process called “geofencing.” Reverse search warrants authorize police to search broad geographical areas to determine who was near a given place at a given time. In practice, these warrants give police permission to use Google location data to engage in massive fishing expeditions and subject hundreds, if not thousands, of innocent people to police location tracking. According to the New York Times, federal agents first utilized the practice in 2016. According to the report, 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 can gather similar information using cell-site simulators, often called “stingrays.”
According to the New York Surveillance Technology Oversight Project (STOP), concerns about how location data collected during the state’s battle against COVID-19 could be used by police. The Wall Street Journal reported that federal, state and local governments were partnering in a warrantless cellphone tracking program to gather information on Americans’ movements in over 500 cities.
“We are deeply alarmed by federal, state and local officials’ growing use of warrantless location tracking and so-called ‘reverse search warrants,” STOP executive director Albert Fox Cahn said. “While this type of tracking may be appropriate for some public health officials, it’s outrageous that this information is being shared with police. COVID-19 cannot grant New York’s police departments a blank check for surveillance. Even when police gain a warrant, wide-area geolocation searches make a mockery of the Constitution. When a single court order okays searches on hundreds or even thousands of individuals, it undermines the entire purpose of requiring warrants in the first place. The judges approving these orders simply can’t know how much data they’re handing over to law enforcement when they approve the request.”
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
Limiting information collected by state and local law enforcement agencies limits the amount of information that can flow into federal databases through fusion centers and the ISE.
A3306 was referred to the Assembly Codes Committee where it must get a hearing and then pass by a majority vote before moving forward in the legislative process.
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