This statement comes after the ACLU, alongside eight Federal Public Defender offices, filed an amicus brief with a U.S. federal appeals court in Virginia on Jan 27. The brief challenges the court’s decision to admit Google location data obtained via a geofence warrant as evidence in the case against Okello T. Chatrie. Chatrie is charged with robbing the Call Federal Credit Union in Midlothian, Virginia. He was sentenced to nearly 12 years in prison in August 2022. The ACLU argues that Google’s Sensorvault data does not qualify for the “good-faith exception” due to “defects in the warrant” that law enforcement used to obtain the data. Among other things, the ACLU notes that the search process was not overseen by a judge and may have compromised the privacy of several people not involved in the crime. The police accessed Google location data of about 19 phones near the bank in the quest to identify the suspect. Chatrie’s eventual arraignment and sentencing sparked debates about the legality of geofence warrants. This is the first time a U.S. federal court of appeals is hearing a case involving evidence obtained using geofence warrants.
The Legality of Geofence Warrants
Geofence warrants allow law enforcement to identify all active devices in a specified area at a particular time. “These warrants are increasingly common, but they raise serious questions under the Fourth Amendment because they are typically issued without police demonstrating reason to believe all the people who own those devices were involved in any crime,” the ACLU said in a press release. Although the geofence data led to the arrest of a suspect, the ACLU has questioned the warrant’s validity, saying it lacked “probable cause” and the evidence was “obtained-illegally.” The court had found that the search process unconstitutionally bypassed judicial overview. However, the judge ruled that the evidence is admissible due to the “good-faith exception,” which allows evidence obtained in violation of the Fourth Amendment to be used in a trial. However, the ACLU has challenged this decision, saying the effect of the warrant on people not connected to the case means it was “not reasonable for police to rely on it.” The ACLU’s brief also accuses U.S. government agencies of hiding surveillance information and suppressing evidence from the judiciary, particularly where “novel surveillance tools,” like geofencing and reverse keyword searches, are concerned. “When seeking warrants, police shouldn’t be allowed to hide the privacy invasiveness of today’s surveillance tools from judges, and then say the evidence they get by using those tools shouldn’t be suppressed because the judge approved them,” Laura Moraff, Brennan Fellow with ACLU’s Speech, Privacy, and Technology Project said.
Invasive Surveillance Tools
Civil liberty organizations like the ACLU and the Electronic Frontier Foundation have expressed opposition to invasive surveillance tools like geofencing and reverse keyword searches. In anticipation of the Supreme Court’s decision to overturn Roe vs. Wade last year, the ACLU noted that geofence and reverse keyword search warrants pose a threat to the privacy of abortion seekers. Apart from Google, many other tech companies receive requests for user data every year. Last year, a coalition of tech giants, including Microsoft, Google, and Yahoo, expressed support for a New York bill to ban geofence and reverse keyword search warrants in the state. If passed, New York would be the first state to outlaw these surveillance techniques. Geofencing technology has been around for decades and is here to stay. It is used in parental control apps that notify parents when their child moves beyond a predefined area. Some Covid-tracking apps also use the technology. One of the earliest uses for the technology was in the livestock industry, where cattle are outfitted with a GPS tracker to register their movement. Today, geofencing allows Big Tech to profile users and deliver ads based on a user’s location. However, the technology can also be abused by malicious software like the MonitorMinor stalkerware. If you own an Android device and would like to block geofencing, disable access to Location-based Services (or pick the apps you don’t want tracking you). For iOS, go to Privacy & Security>Location Services in your settings to check which services and apps can access your location data. You can also disable the Allow Apps to Request to Track feature in iOS. For more information, check out our in-depth guides to optimizing your iOS 15 and Android privacy settings.
