February 22, 2019
Google knows where you are every minute of every day.
A recent Associated Press investigation found that many Google services on Android devices and iPhones store user location data even when the user doesn’t want the location data transmitted or stored.
The privacy issue affects some 2 billion users of devices that run Google’s Android operating software and hundreds of millions of worldwide iPhone users who rely on Google for maps or searches.
So, guess who’s looking for Google - the police. With all of that data about where people go, and where they have been, Google is a hot commodity in the criminal justice system.
For the last couple of years, police departments nationwide have been tapping into Google’s extensive catalogue of cell phone location data to help solve crimes.
Through the use of “reverse location search warrants” crime investigators have been able to track the movements of every cell phone in a given neighborhood, town or even across an entire city.
Reverse location search warrants are not your “founding fathers’” search warrants. When the Bill of Rights were drafted in 1791, the leaders of the new Republic were not far removed from the abusive British Writs of Assistance that were used to enter any colonial home, at any time, without basis to search for contraband.
The Fourth Amendment was what the founders came up with to protect themselves from unlawful searches and seizures. The amendment provides that people shall be secure in their persons, houses, papers and effect and that ”(N)o Warrants shall issue, but upon probable cause.”
What is probable cause? An investigator seeking a search warrant must have supporting facts that a search will reveal evidence of a crime.
A reverse location search warrant differs from a traditional search warrant in that it doesn’t identify a suspect and establish probable cause to ask for evidence of a suspect’s crimes. Instead, it asks for information about everyone in an area at a certain time, working backwards to identify a suspect.
Initially, a reverse location search warrant requests anonymized data, data that is not attributed to a named individual, from a specific geographic area during a period of time that is related to a crime.
With the anonymized list, the search warrant may provide that law enforcement will narrow it down by comparing the specific time of crime with the location of a cell phone. Once reduced a second time, the smaller anonymized list is produced. The police then request identifying account information, including user names, subscriber information and devices associated with the specific accounts.
That information is used to connect the same individual to multiple crime scenes or separate areas that are crucial to the investigation.
Law enforcement officials promote the warrants an important new tool in fighting crime organized criminal activity, and it does not infringe on an individual’s reasonable expectation of privacy.
Criminal defense attorneys argue that providing enormous amounts of data to law enforcement based on a “hunch” violates the Fourth Amendment. Reverse location search warrants are based on a hunch. The police are operating on the theory that the person responsible for a crime at a given location had an Android or iPhone and - if their hunch is correct - they might be able to pick the suspect out of hundreds or even thousands of other cell phone users.
″(Law enforcement) needs to suspect a particular person or criminal activity, not just go, for example, search every home in a given area,” Jennifer Lynch, of the Electronic Frontier Foundation told NPR.
No one would tolerate the government going into every home in a neighborhood to search for a suspect, nor should one look the other way when the police - without probable cause or specificity or even a suspect - are permitted to analyze data on thousands of law abiding citizens.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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