A federal appeals court has ruled that geofencing warrants are unconstitutional, a decision that could limit the use of controversial search warrants in several US states.
A ruling Friday from the 5th U.S. Circuit Court of Appeals, which covers Louisiana, Mississippi and Texas, said geofencing warrants are “blatantly prohibited by the Fourth Amendment's protection against unreasonable searches and seizures.”
Civil rights and privacy advocates applauded the ruling, which currently effectively makes the use of geofencing warrants illegal in three US states.
Geofencing warrants, also known as “reverse” search warrants, allow police to draw a shape on a map of a crime scene or similar and ask Google (or other companies that collect user location information) to search their entire bank of location data for phones or devices that were in that area at a specific time.
But critics have long argued that geofencing warrants are unconstitutional because they can be too broad and could include information about completely innocent people.
The case involved an armed robbery of a U.S. Postal Service employee in Mississippi in February 2018, in which police used a geofencing warrant to identify the robbery suspect.
The 5th Circuit's decision differs from a similar case heard last month by the 4th Circuit, which covers North Carolina, Virginia and West Virginia, which ruled that Google's access to location data does not constitute a search and upheld the lawfulness of geofencing warrants in those states.
In that case, the 5th Circuit Court of Appeals disagreed, ruling that police scouring Google's vast repository of location data for suspected criminals did constitute a search, but because the databank was so large it would require scanning the entire database, the court ruled it lacked the legal authority to authorize the search, according to a blog post by law professor Orrin Carr, who analyzed the decision.
In its decision, the court emphasized the following: “These searches are conducted without law enforcement officials knowing who they are searching for or even whether the searches will yield any results. Indeed, the fundamental problem with these warrants is that they contain no specific users to be identified at all, only the time and geographic locations where specific users may appear after the search. This is constitutionally insufficient.”
The Fifth Circuit Court of Appeals ruled that the geofencing warrants were unconstitutional, but upheld the defendants' convictions, concluding that the police acted in good faith when seeking a warrant for Google's location data. The court noted that evidence should not be suppressed in this case because the use of geofencing warrants was novel at the time and the police had sought legal guidance from other agencies before filing the warrants.
In his analysis, Carr said the ruling “raises the question of whether digital warrants for online content are constitutional.”
Tech companies like Google, Uber, and Snap collect and store vast amounts of user location data and history on their servers, making this data available to law enforcement. If the data didn't exist, the issue would be moot. The use of geofencing warrants has skyrocketed in recent years, at one point accounting for roughly a quarter of the companies' U.S. legal requests.
Google announced late last year that it would begin storing users' location data on their devices, making geofencing warrants less useful to law enforcement.