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When police use big tech data in criminal investigations

Posted on December 7, 2020

Many of us have an uneasy relationship with the companies like Google and Facebook. We know and like their products, but we aren’t necessarily pleased about the amount of data they collect on us. If you’re in this situation, you may comfort yourself with the idea that, at worst, these companies are just using your data to target you with ads. Unfortunately, however, they aren’t the only ones who can access it.

It is increasingly common for law enforcement agencies seek warrants for data collected by major tech companies to help solve crimes. But the way they are going about doesn’t just target the suspect of an investigation. In fact, sometimes there is no suspect until police start with huge amounts of collected data and then work backwards.

Increasing use of geofence warrants in police investigations

Google and other tech companies have access to huge amounts of location data collected by the apps in our smartphones. These can collect information on where a phone has been, when it was there and how long it was there. This can obviously be highly valuable information when police have a suspect and are trying to prove he was at the crime scene when the crime occurred.

But what if there is no suspect? That’s not really a problem with geofence warrants. Law enforcement may obtain a warrant asking Google to provide information on all the cellphones in a given place at a given time. It can then narrow the search by adding additional criteria and eventually come up with a list of just two or three suspects. In other words, to find one suspect, law enforcement violates the privacy of perhaps hundreds of innocent individuals.

Are geofence warrants unconstitutional?

The Fourth Amendment to the Constitution protects all of us against unreasonable search and seizure by law enforcement. This usually means police must obtain a search warrant to conduct a search, and the scope of the warrant must be narrow (searching a suspect’s laptop for something specific, as opposed to a wide search of all the suspect’s property).

Geofence warrants aren’t narrow in scope. They are like fishing with a net as opposed to fishing with a rod and reel. For this reason, many legal scholars question whether they are constitutional. And some judges show their agreement by refusing to issue warrants (often because the scope is too broad). Unfortunately, not all judges are so prudent, and law enforcement agencies can often obtain these warrants when seeking them.

It matters how evidence is collected

Law enforcement agencies must not obtain evidence in any way that violates your Fourth Amendment rights. If the evidence is gathered illegally, you can petition a judge to have it suppressed, meaning it can’t be used against you at trial. The constitutionality of geofence warrants is still an open question, as are many other new technological means of evidence gathering. If you find yourself facing criminal charges, please remember that evidence can and should be challenged – especially if there is reason to believe that it was gathered in violation of your rights.