They are a very effective tool for finding burglars.
That's how many burglaries are solved in my area. If the exact time of the burglary is known (from alarm or security camera) a very specific warrant is given for all phone activity at or near that time at that location.
I'm hoping if the warrent is more specific (perhaps finding similar burglaries and requesting information only for matches between the two locations) they can still be used.
Unsurprisingly, however, the court found that in 2018, police could have relied on such a warrant in “good faith,” because geofence technology was novel, and police reached out to other agencies with more experience for guidance. This means that the evidence they obtained will not be suppressed in this case.
That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.
I am not a lawyer, but the language of the opinion [1] seems to indicate that the geofence itself is not admissible, but evidence obtained as a result of it is still admissible:
On November 4, 2022, Smith filed a Motion to Suppress— which the other Appellants joined—seeking to suppress all evidence derived from the November 2018 geofence warrant which was used to identify them as suspects.
They were identified as suspects, and further investigation produced more evidence, which formed the case. What they are saying is that the good faith exception prevents this from tainting all derived evidence in this case, which seems reasonable.
The good faith exception is an exception to the exclusionary rule, not to the admissibility of the evidence itself.
[1] https://www.ca5.uscourts.gov/opinions/pub/23/23-60321-CR0.pd...
the opinion [1] seems to indicate that the geofence itself is not admissible, but evidence obtained as a result of it is still admissible
That means they can geofence to get a short list of suspects, and then file proper warrants for some of them if they have more clues?
Not anymore, now that this precedent is set.
I'm still wondering how this precedent prevents parallel construction nonsense
I'm confused how parallel construction plays in here, nonsense adds another layer of confusion, but an attempt to help, tl;dr: the 5th Circuit has held that requesting a list of people/IPs/devices in a location is not permissible.
I'm just trying to guess a gap: engineers tend to see law as more iron, like code, and judge law based on inverse programming: if you can find some set of circumstances that creates a gap where the law isn't obeyed.
Ex. here, you might mean that this doesn't technically stop police from requesting geofenced data anyway, using it to get suspects, then not mentioning it at trial. Yes, technically, the police could ignore this, and request a warrant, then the judge could ignore it, then the tech companies could ignore it, the DA could collude with the police to hide that happened, and pretend they found the suspect a different way.
But it's impractical.
It's hard to spell out why, exactly, tl;dr: death penalty for your career if any of this is discovered by anyone, you can't do it by yourself, and these people are generally on the same team in our distanced analysis, people are tribal, and gov't attorneys/tech companies/judges/police can't rely on eachother's silence.
It's hard to spell out why, exactly, tl;dr: death penalty for your career if any of this is discovered by anyone
How many careers have ended over discovery of parallel construction?
This is making me grimace, because I went to some lengths to spell it out politely and at length to avoid as many freshman dorm rooms quips as possible, and yet, I still got one
Sir, parallel construction ever happening has nothing to do with what we're talking about, how the legal system enforces its decisions without assigning a cop to each American, and then a cop to watch that cop, and then a cop to watch that cop, and then a cop to watch the cop.
The only way this isn't a lazy quip is if you're a full on "abolish the legal system" anarchist or a full on "with the correct DAG of cops we will finally enforce laws on each other"
You're reading things into my comment that I never said. I'm not the same person you were previously replying to, in case that confused you.
parallel construction ever happening has nothing to do with what we're talking about
I never said the two cases have anything to do with each other.
What I see is similarities between the two regarding your reasoning. That is, they both require the government agents doing something that you'd think would jeopardize their careers, and yet they're getting away with it all the time... because they actually do manage to successfully hide the practice from the courts when trial time comes.
If just reading "parallel construction" is inducing a knee-jerk reaction from you, look at other examples of perjury and how many careers ended over them. Here [1] is one article I'll quote for you: A former San Francisco Police commissioner [said] "One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. [...] It is the routine way of doing business in courtrooms everywhere in America." ... Justice [...] of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units: “I thought I was not naïve [...] but even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”
If you're going to claim the "engineers" here are "lazy" or otherwise ignorant about the robustness of the US legal system, you'll need to do more to enlighten them than wave your hands around saying "it's hard to spell out why it's impractical" with vague game-theoretical explanations. Because to a lot of folks here, this kind of stuff is clearly still happening, regardless of what you believe about the difficulty of distributed coordination or the explanatory power of game theory.
[1] https://www.nytimes.com/2013/02/03/opinion/sunday/why-police...
In this case it’s pretty simple: they won’t be able to obtain geofence warrants in the future.
So now we just have to rely on Google/Apple/cell-carriers to not hand over all the geofence data without a warrant. I'm sure the cops will be leaning _heavily_ on 3rd Party Doctrine next time they call up Google with their warrantless geofence data requests.
Interestingly, Google has recently started to shift their entire infrastructure for location tracking off their servers and onto users’ devices. Motivated in part by geofence warrants (and, in this commenter’s opinion, perhaps by anti-abortion laws in the US too).
It’s actually rather frustrating for me as I used to export and keep the GPS logs, for geotagging photos from a camera, which will need to be done per day now. Nonetheless, a smart move as they simply won’t hold this information anymore - even for those who opt-in to the feature.
Somewhat a shame since they have successfully tracked down serial killers by winnowing cell phones common to multiple crime scenes.
No legal precedent can prevent parallel construction, because when it is done right, nobody but the police are actually aware that it took place.
Without speaking of the general case, this specific legal precedent does prevent parallel construction for this particular source of data.
In order to obtain the data that law enforcement would have to "discover" through parallel construction, they need Google to cooperate and run the analysis to give them the required data. They can try to make this request through informal channels, but Google will say that they need a warrant. They can't make the request through formal channels because no judge will give them a warrant. So that's pretty much it.
There was a warrant in this case. That type of warrant is now deficient and electronic data holders like Google with easily refute future attempts to get data with a clearly deficient warrant. Parallel construction typically means a warrant was not given on the first pass.
It doesn't encourage Parallel construction unless you think any restriction on warrants does.
This precedent doesn't prevent parallel construction at all. In fact, it encourages parallel construction.
Parallel construction is this huge phantom menace on the internet but something that in real life occurs less frequently than a person being struck by lightning.
Law enforcement faces a very high burden to show that parallel construction would apply. (Not "could." Would.) This generally requires law enforcement to show that they were pursuing multiple parallel paths of investigation, and that basic investigatory work in one of the other paths of investigation would have legally led to the excluded evidence as a matter of course. To put it perspective how difficult this is, a former co-worker that is still with the public defender has seen the prosecutor succeed exactly once in 15 years in making a parallel construction argument.
The DEA is the only agency that successfully makes parallel construction arguments on a regular basis, and this is primarily because the DEA has the resources to actively pursue multiple parallel paths of investigation, and because in many cases the reason for using parallel construction is that key witnesses have a tendency to get murdered....
Well they need the warrant to get Google to give them the information in the first place, so they would not have the data to create the parallel construction.
I don't see how that's reasonable.
"Well we kicked down the door to your house, which was wrong, but look at all this good evidence we got! I mean, c'mon, the guy is clearly guilty..."
Intent is the key to the good faith exception here.
If you intend to kick down a door to find evidence of wrongdoing, anything you find is inadmissible. But if you kick down a door because someone on the other side is screaming for help, evidence of other wrongdoing that you find is admissible still.
Here, they are saying that they had good reason to believe they could operate in the way that they did, so while the geofence evidence itself isn't able to be used, other evidence derived from that work is still usable. But going forwards, no one can use the geofence technique in good faith.
Bear in mind that physical cash is somehow able to be charged with crimes, thus enabling police theft via civil asset forfeiture. Even when the police had no reason to suspect there was any cash on people in the first place.
So it doesn't seem like much of a step to "the evidence was screaming to us from inside, begging to be found". It's about the same level of nonsense. ;)
Civil asset forfeiture is problematic and has been abused but it's completely separate from criminal evidence rules. The physical cash is never charged with a crime. Instead the government files a civil (not criminal) case alleging that the cash is the result of criminal activity. The burden of proof then is much lower than in a criminal trial, and often the plaintiff wins a default judgement.
Awesome. Now adapt that to evidence inside a house begging to be found. :)
You can't. Civil court is different from criminal court. The standards are different.
So it doesn't seem like much of a step
Rebuttal, that seems like a huge step.
If “I thought they had a gun” is a free pass for cops to murder why won’t cops simply say “I thought I heard a cry for help” when they kick a door down without a warrant?
And intent is notoriously hard to prove. As long as there isn't an email saying "fuck the laws break it down" good luck proving the cops were the bad guy and every judge will side with them all day long. "Ope, another clerical error, Joe Admin Assistant screwed it up, we were just following orders."
Not even a good analogy when it comes to technology. Standing close to the door could be considered illegal and even if you had the legal right to entire anything you would find could be inadmissible.
No, the analogy is breaking a rule in "good faith". It's absurd. Regular citizens can't do that. Ignorance of the law or "good intentions" isn't a defense for a normal person.
What utter nonsense on behalf of the courts. The "good faith" defense is irrelevant to the finding that a fundamental right was violated, and to deny the original defendant relief like this is just absurd.
This is a way for the courts not to get bad press. For the defendant at the time this is a terrible ending. For everyone else it's still nice. From a court's perspective this is a good compromise.
No it isn't. This is one of those cases where by tweaking things as such the Judiciary has shown that it cannot be trusted to keep the Executive in line. Again.
The Courts are coming out of this looking even worse than they have been.
I don't disagree. But I'm telling you how I think the judges feel about this, not how you should feel about it.
If this was about discrimination of race, as a rights violation, it is clear that good faith is irrelevant. Rights supercede good faith and the presumption or previous decisions are improper.
It's more complicated than that. All they really did was suspend the "fruit of the poison tree" doctrine.
The evidence gathered by the now ruled unconstitutional methods is not allowed to be used but the evidence gathered afterwards is still admissable where it normally would not be.
In this case, they can't use the geofence data of their locations as evidence but, after they used that to identify suspects, they can use all evidence gathered afterwards where that would normally not be allowed.
Exactly. The fundamental assumption of the Bill of Rights is that governments do not operate in good faith. If they did, there would be no need to spell out how the government is not allowed to abuse you.
That's why I love the law's ability to consider context: the structure protects what is right over the pedantic, here, letting a violent criminal skate 6 years later because of new thinking.
Basically every noteworthy Fourth Amendment case works this way unfortunately.
It also makes it hard for the government to appeal the ruling, which then might just stand as precedent throughout the 5th circuit.
Was "Stop and Frisk" by the NYPD also in good faith for the decade or more that it took to get it declared unconstitutional?
That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.
Big Jean-Marc Bosman energy, who essentially changed the face of football (soccer) forever in the 90's because his club didn't want to let him leave, but he didn't play anymore all the trials.
Relevant:
Good faith provides an exception to the Fourth Amendment exclusionary rule barring the use at trial of evidence obtained pursuant to an unlawful search and seizure. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is admissible under this exception.
https://www.law.cornell.edu/wex/good_faith_exception_to_excl...
It's unfortunate for the defendant, but does follow existing precedent.
Even if practices so far have been unconstitutionally broad and sloppy, are there any scenarios where such a warrant for that kind of data could be valid?
For example, a small cottage in the woods is burned down with gasoline on a night the owner is absent. The police want to find the arsonist by asking for phones that connected to that tower that night, and there happen to be only 3 results, two of which are known neighbors. Still too broad?
In other words, should some of this hinge on the varying size/specificity of the result-set, rather than the query-parameters in isolation?
A suspect runs into a garage with several unlocked cars, including yours. The suspect had drugs when he went into the garage and didn't when he came out. The drugs may be in any of the cars or none of them.
You would not get a search warrant in that case unless your car was the only one in the garage. The police don't know if there is three or even one phone connected to the tower in that time, and they should not get a warrant.
How far can probable cause stretch?
Can I say, "well it's probably in one of those 3 cars" so then I can get a warrant?
After the Boston Marathon bombing, they searched a 20-block area for the suspect (and found him). Was that legal?
There's actually a Slate article covering this topic[0]. First, consent was given for certain homes. However, the article also notes that under "exigent circumstances" warrantless searches are permitted:
In exigent circumstances, or emergency situations, police can conduct warrantless searches to protect public safety. This exception to the Fourth Amendment’s probable cause requirement normally addresses situations of “hot pursuit,” in which an escaping suspect is tracked to a private home. But it might also apply to the events unfolding in Boston if further harm or injury might be supposed to occur in the time it takes to secure a warrant. A bomber believed to be armed and planning more violence would almost certainly meet such prerequisites.
[0]: https://slate.com/news-and-politics/2013/04/boston-bomber-ma...
A resident found him in his boat in his back yard and called police.
After the Boston Marathon bombing, they searched a 20-block area for the suspect (and found him). Was that legal?
Uh, why wouldn't a cop be allowed to walk/drive/fly-over public roadways in a 20-block area and look from public land in any direction?
Also do note, they knew specifically who they were looking for and had location data from their cellphones [1]. Not a judge, but if I was and somebody wanted a search warrant to find a person at a location and their evidence was the dude's cellphone is there, I'd grant it.
[1]: https://en.wikipedia.org/wiki/Dzhokhar_Tsarnaev#Manhunt_and_...
Wasn't it a voluntary search?
The police don't know if there is three or even one phone connected to the tower in that time.
Huh? The entire point the parent was making is that they do "know" which cell phones were connected during specific times.
Huh? The entire point the parent was making is that they do "know" which cell phones were connected during specific times.
As I understand it, the point is that law enforcement does not know this, and thus they send a request to the service provider for all devices within this geofence within this timebox.
The service provider must then search the entirety of the relevant datastores for devices matching the geo- and time requirements.
In the specific cases in question, the officers had video evidence of one of the perpetrators using a cell phone, and used that to justify the warrant. The court ruled that even this was insufficient, but is part of the reason why they are not applying the exclusionary rule to these cases even though the evidence itself is inadmissible.
Wait, really?
If police say they have extremely good evidence to believe the drugs are in the garage, in the scenario you described, a court wouldn't issue a search warrant for the garage including any cars it contains?
I'm genuinely surprised. Is there a name for whatever legal principle prevents the court from doing so? I'd like to learn more about this.
Because from Wikipedia [1], I'd have assumed that this would be a cut-and-dried instance of probable cause [2]. Is it about the vehicle owners being different from the garage owner?
Edit: some quick googling seems to indicate that search warrants in the US can be issued to include all or specifically identified vehicles on a property, but no indication of what conditions need to be met.
[1] https://en.wikipedia.org/wiki/Search_warrant#United_States
It really depends on what is, at the time, considered "reasonable" search by the people with the monopoly on the violence.
generally, most laws are overlooked when the situation involves drugs. Cops can search you, your car, whatever on suspicion that drugs may be present.
You would not get a search warrant [for several unlocked cars]
Hold up, you state that rather firmly but what's the reasoning that supports it?
What's the rationale that separates 1 car from "several" for probable cause?
____
I feel there's a risk of conflating:
1. Good reason to believe X is somehow involved a crime.
2. Probable cause to search for/inside something owned by X.
While there is a strong correlation between the answers to those two questions, they are definitely not the same.
I wanted something slightly more realistic. It works just as well if the garage is an apartment building where everyone keeps their apartment unlocked.
The guy is making no sense. Or picked a bad fact pattern to make a point.
In the case he's describing you'd just get a search warrant for the garage and everything in it. Or, if you could establish probable cause (which seems likely here) you'd just go look for the drugs.
A better analogy here, as some seem to struggle, would be the dealer goes into an apartment building and comes out empty handed, it could be in any of the apartments or none.
I think maybe they will still use it, it's just not admissable as evidence in court
https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree
Fruit of the poisonous trees is a doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained.
GP is probably referring to the practice of "Evidence Laundering" which has been deployed from time to time by law enforcement.
Still dubious that this would be used that way just because telecoms would be aware of this potential for misuse and would not give the data up without a subpeona or warrant, which under this ruling would not be allowed.
Government: we want a geofence warrant for ...
Court: no
Government: how much $ for this data?
Telco/bigtechco: ah, now we're talking
Legislative branch: No spending on that.
Executive: ...Ah...
More like "Executive: lol".
https://en.wikipedia.org/wiki/Parallel_construction
Another officer will get an "anonymous tip".
Search warrants are usually public record after they are unsealed. If they aren't included in evidence its a Brady violation and if caught the case is essentially dead. If the defense sees that the search warrant was given or executed first, they probably have a very strong argument that all the evidence is tainted. Parallel construction doesn't work very well when proof of tainted evidence is publicly available.
"Our Confidential Informant, Fuzzy Dunlop".
Two cops on The Wire do this, and basically register a tennis ball, hence the name, as their CI - https://www.youtube.com/watch?v=9GJa1_u-VLE
Back reconstruction enters the chat
From this decision is it doubtful that a judge would grant the warrant under any circumstances -- the knowledge, for example, that there are only three results, is only available after the warrant is executed. Since no warrant would be so granted, the data that only three results are found would never be discovered.
A judge could always choose to grant the warrant, but with full knowledge that any evidence uncovered will likely be inadmissible. Even if a judge grants such a warrant, it would likely be contested by the service provider (Google), and another judge would need to sign off on it, and likely an appelate court would have to deny certiorari in order. And even if it was allowed, at trial all of this would again be litigated with a fresh set of judges, and once again have to navigate up the apellate courts, and would most likely impair or cripple the prosecution of a case where it was used.
There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.
There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.
Is there a strong reason to assume one way or another about whether this will get reviewed by the Supreme Court (and if so, whether it would be upheld)? My understanding is that the Fifth Circuit has become a bit notorious in recent years for its rulings being a bit out of the norm and reviewed disproportionately by the Supreme Court, but I don't know enough about whether this decision might be one of those.
it is essential that every person feels like they can simply take their cell phone out into the world without the fear that they might end up a criminal suspect because their location data was swept up in open-ended digital dragnet.
This single ruling, does nothing to make me feel any better about this. Everyone can be swept up in "some digital dragnet" because everyone's data is everywhere, and it's impossible to manage without hauling off to the woods and disconnecting from the internet at large.
This ruling is a huge step in the right direction. To gather all the data you speak of requires some entity (entities, really) -currently not the government- to gather it and then make it available for subpoenas and warrants, which would then fall [in the 5th circuit anyways, right now] under this precedent.
The government could get into the business of building [under cover] popular apps so as to gather that data themselves, but that would take a great deal of time and money, and most importantly competence!
As the sibling comment points out, the government doesn't need a subpoena if companies hand over the data willingly (typically for a fee.)
I can't see this being fixed until America decides that the rights to our identifying data can't be signed away.
Even I said that in an earlier comment (https://news.ycombinator.com/item?id=41229845).
Still, this is a step forward. The step might be to forbid the government bypassing legal protections by buying the data.
True.
This ruling says you can't subpoena data.
It doesn't say you can't buy it. The free market is an enormous whole in our privacy rights. At the same time, it's crazy that we ourselves put all of our data out there on the free market.
Or just pay a data broker.
Is it really essential?
I don't feel like this ruling changes my chances of being falsely accused of a crime at all. All it really does is take away a tool police could use to find the right person.
There is no reasoning with "privacy advocates" on this. Your argument is essentially "think of the children" to their ears and they're used to blocking it out categorically without thinking.
No amount of "checks and balances" and "valid scenarios" will convince them otherwise. They've decided that their arbitrary notion of privacy is some sort of "human right" and will drag us all to hell because of it. In the meantime, they refuse to participate with lawmakers to tread a middle-ground so the laws end up being utterly draconian (see the EU stuff happening in real time) against ordinary citizens.
Oh and don't even get me started on the kicker, whereby most of law-enforcement simply refuses to enforce and prosecute the bulk of uncomfortable crime they encounter (see the US and UK right now where they let criminals loose on their populace because they're afraid of the "optics").
I honestly don't know what kind of f-d up world we're leaving to our children. But they will judge us very harshly for it someday.
the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search
In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.
From the ruling emphasizes a search through the "entire" database as a kind of rummaging through everything in a house, but that's clearly inapt. First, it shouldn't matter whether Google just needs to check an index vs. doing a full scan. Second, there's no reason to assume a digital search has the same privacy implications as a house search. It's just assuming what you're trying to prove. `While the results of a geofence warrant may be narrowly tailored, the search itself is not` is relevant only if the search itself is an invasion of privacy.
So even (especially?) if I preferred the result in this case, that reasoning is not likely to hold up in a conflict with the 4th circuit. It's exactly this kind of weak conflict that gives the Supreme Court too much latitude to draw lines as they see fit.
edit: sorry, removed disrespect for the EFF
In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.
That's an absurd reduction, and not at all analogous to the situation discussed in TFA.
I agree the situations are different and this situation warrants privacy protection.
However, the court fails to articulate anything close to a workable rule in its reasoning.
Further, because the actual outcome was an upheld search d/t good faith reliance, the finding of unconstitutionality is basically dicta, and would/should be ignored by other districts and even in the same district.
I don't think this ruling offers the protections people want or should have. I think that point stands, however hidden by downvoting.
In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.
No. Working with that analogy, this ruling indicates you can't get one warrant that applies to everyone in the book - simply because they are listed in the same geographic area.
A phone-book warrant would not be in harmony with the 4th Amendment.
Does it mean that it would be constitutional if each tower kept its own log? Or then, if the database server collated a separate log for each tower as it went?
How would one-log-per-tower be different from a surveillance video tape?
Hmmm... elements of an answer: there is no doubt more in the decision but from the EFF writeup: (1) "individuals have a reasonable expectation of privacy in the location data", (2) "sensitive information about a person’s associations and allow police to “follow” them into private spaces", (3) "require a provider, almost always Google, to search “the entirety” of its reserve of location data “while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result.”"
So it sounds like one-log-per-tower would take care of the third point (the warrant would call for 1-4 specific towers or something), but the court still found an expectation of privacy in cell phone location, and an expectation that this sensitive private info might intrude of private spaces. As opposed to a video camera which views a public space.
In that case, it's illegal to look in the phone book for names starting with "john" because that's not a specific user.
Only if everyone in the phone book has a privacy interest requiring a warrant to breach in the fact that their name was in the phone book. They don't.
But imagine for a second they did. Then your search for "John" in the phone book would have involved flipping through the phone books pages looking for the "John" section, in the process violating the privacy rights of everyones names you looked at to figure out if you where before or after the Johns section. Of course that would be unconstitutional. It would be like trying to figure out where John lived by searching every apartment until you found the apartment with John's diary in it.
Interesting tangent to this is that Google has recently announced that they are shutting down their "Timeline" service in favor of having that information stored locally on the user device. I wonder if this is a "do no evil" reaction to geofence warrants -- if Google does not have the information they cannot give it to law enforcement. This has been Google's practice in other situation (GDPR) where retaining information inherently exposes Google's customers to law enforcement violations of their privacy via Google itself.
do no evil
google dropped that slogan a decade or more ago
And remember ... don't be evil, and if you see something that you think isn't right -- speak up! [1]
Please snitch. No, I mean it, snitch on the dirty things Google does in gathering user data and selling behavioral data to the largest bidder.
I'm for total blind advertising. Non-targeted --not on the individual level. No smaller than ZIP.
No, they didn’t. After corporate restructuring, parent company Alphabet uses a different cute slogan, while Google retains “don’t be evil” in their code of conduct.
Related:
No reasonable expectation of privacy in one's Google location data - https://news.ycombinator.com/item?id=40958458 - July 2024 (163 comments)
Wonder if this case will make google backtrack on their move to purge all location data from their users server-based location histories?
One decision is by the fourth circuit, the other is the fifth. I don't know enough about the details, but in situations like this, the Supreme Court takes the case to resolve discrepancies.
So, the police can't use the cell tower, but they can use Google's location data, which is arguably higher quality anyway? I guess I'll take the small win, but I'd prefer the police don't have access to any type of blanket warrant.
I'm pretty up on current events, but I did not know/recall what a geofence warrant is. It's the "what cellphones pinged here" search warrant:
A geofence warrant is a type of search warrant that allows law enforcement to collect location data from devices within a specific geographic area (the "geofence") during a particular time period. This warrant enables investigators to:
1. Identify devices present in the area
2. Collect location data, such as GPS coordinates or cell tower information
3. Link devices to specific locations and times
It's also "what devices Google saw in these areas at these times", which is much higher quality than cell tower triangulation.
The article appears to be deliberately obfuscating the definition to keep the reader hooked for longer. The link to the article that describes a geofence is even more transparent about it.
The most important thing to remember reading this, for most of us (including myself) is the phrase:
I Am Not A Lawyer
And, now that there is a circuit split, this is squarely teed up for the Supreme Court, and there’s really no telling how they’ll come out.
Fifth Circuit being our only check and balance is amusing to me
But I can appreciate the distributed nature of this system
Can a FOIA request reveal if your phone has ever been included in one of these geofence warrants?
So, this is about taking a blind sample of an area to see if anyone is suspicious.
This is in contrast to having a named suspect, and then analyzing their phone data to see if they were in the area? That's still legit discovery?
I like how they take 15 years to work these issues through the courts, meanwhile untold thousands of people have their rights violated.
This is an interesting decision in historical context for several reasons.
First, the Fifth Circuit is conservative. It includes Texas, Louisianna and Alabama. It's become known as the fast-track to the Supreme Court as it has ruled very conservatively at both the district and appellate level. This problem is exacerbated by how the Fifth Circuit is organized where the districts in the circuit are divided into divisions of often 1-2 judges, allowing plaintiffs to very effectively "judge shop".
Second, in modern times the Fourth Amendment has been consistently weakened by successive Supreme Court. A notable example if the 1968 case Terry v. Ohio that allowed police to stop people and search them without probably cause. Another huge example if the whole concept of civil asset forfeiture, which was justified by (IMHO) the most contorted mental gymnastics: this pile of money has no rights. But it was found in someone's car. How is it not their property and thus the Fourth Amendment limitation on unlawful search and seizure should apply?
Third, the Supreme Court will likely take this case up now. Why? Because the Fourth and Fifth Circuits have issued conflicting rulings. That's when the Supreme Court steps in, more often than not.
Fourth, if a user's location data has a rasonable expectation of privacy, it raises the question of what other data has a reasonable expectation of privacy? What about law enforcemen tuse of Stingrays? Or facial recognition systems?
Cities are already building their own tracking networks with APLR, Bluetooth, TPMS, toll transponders, etc.
I would imagine someday, police will say geofence every radio detected by a their (or third parties) sensors network and then drive around looking for those radios, or wait until they pass one of their detectors again.
Perhaps someone has already commented this, but LE can still purchase data from data brokers circumventing need for a warrant. That’s not to say that this isn’t an important step in the right direction, rather it’s to point out that there is still work to be done.
As the court noted, geofence warrants require a provider, almost always Google, to search “the entirety” of its reserve of location data
I haven't read the ruling, but this has always struck me as the key problem with geofence warrants that courts have been ignoring. A geofence warrant doesn't just involve a search of the location data that is in the area, it involves a search of all the location data collected worldwide to determine that it wasn't in the area. It couldn't be less localized.
This is fantastic. I’ve worked on this problem and it’s an incredible invasion of privacy.
However, until we get clarification from FISA courts we will still have to deal with it. The problem is the line where FISA has been used to acquire information for criminal prosecution rather than for intelligence purposes, and the broader and broader definition of terrorist and the dramatic expansion of domestic watchlists in recent times.
Let’s hope that it gets unilaterally outlawed and then FISA is forced to follow the supreme law of the land in future rulings.
Interesting constrast with the Las Vegas room searches.
Naive question - how is geofence different than security camera footage of the street? It also includes indoor areas?
Fix the root cause of why folks need to steal instead of invading everyone's privacy?
I see this implication over and over (that poor hungry people steal). Poor people don't often steal. They might pilfer here and there, but they're not doing outright stealing or robbing. I've known poor people, I've lived with poor people and by and large they are not thieves. They may keep something, sneak something, but they are not breaking in and stealing stuff --if they do take things not theirs, it's "passive" (i.e. opportunistic.)
People who steal are often of two types, career criminals, pert of an organized (this can be peripheral) crime organization, or drugged out zombies who could not hold a job. There's a possible third, impulse theft by teenagers --these are low numbers.
It sticks in my craw when people so easily imply poor people steal and burgle. All the hand to mouth poor people who on occasion dumpster dove and all that, did not steal things, break into homes etc.
poverty is not the problem, lack of moral education is.
we teach STEM in schools, but we assume that moral behavior is obvious and natural. we don't teach children why moral behavior is important, and more critically we don't teach that moral behavior includes caring for others, and that doing so will benefit all of us. instead we teach children to compete against each other, and we put them in situations where selfish behavior is the best way to get ahead. at best we try to scare them about the risks of crime, but we don't show them the benefits of being helpful instead of selfish.
no education is going to completely eradicate crime, but i do believe there is a correlation between the quality of education and the amount of moral education and crimerates.
I don't know if you are a parent or have first-hand experience here. But I am and do, and schools spend an inordinate amount of time doing this. Especially in elementary school, but throughout the public education system messages of caring for others are literally everywhere in every possible context.
Even when I was a student this was the case; we had units and assemblies presenting these concepts to an incredibly frustrating and condescending degree.
presenting these concepts to an incredibly frustrating and condescending degree
which means they are lecturing but not really teaching things in a way that let's kids not only understand but actually internalize and apply what they learn.
this is not an easy task. it requires teachers and all school staff to be good role models and much more. i haven't seen that when i went to school, nor do i see it from my kids (although i have to admit i don't even know what i should expect to see, and how much my own shortcomings in this area mess things up)
one thing that i think matters though is that teaching morals needs to include parents, and that is not happening.
the problem with lecturing is that we keep believing that telling someone what to do or how to behave is enough for kids to pick it up and apply.
it may work for math or basic science, but it most certainly doesn't work for moral behavior. that needs to be practiced and children need to be put into situations where they can apply morals and be allowed to make mistakes.
moral education is not a separate subject, but it needs to permeate all learning in school and outside
Got it. Real moral education has never been tried.
Point taken. But these days they teach STEAM. Which is a weird way of saying they've gone back to not being STEM. STEM was to focus on the sciency, mathy, technical curricula as opposed to the non-STEM, like art and social things. But to undermine the whole STEM they went and braded regular curricula STEAM curricula so people would think, yeah, it's basically STEM with an "A" in it. Brilliant bastards.
That's not what STEAM is at all. Please actually look up the term before deciding what it means and deriding it (it does deserve derision, but mostly for a terrible rollout and lesson plans that misunderstand it).
Sorry, can you show me where in my comment I pointed at poverty being the root cause?
So, according to you what are the root causes of burglary and theft?
And what would that root cause be?
I don't think there is _one_ root cause. But I can tell you that burglary is a symptom, and seeing increases in it year over year (outpacing population growth) is a sign of systemic problems.
LOL. There's no reason a lot of times. We have a major "joyriding" epidemic in my city and it's just idiot kids making tiktok videos for fun.
Society probably needs to have a frank conversation about if things like TikTok are a net benefit or not.
TikTok is fine. Criminals need to be locked up in a prison.
Burglary rates have dropped precipitously in the past 30 years from ~1250 per 100k to ~300 per 100k.
Source: https://www.statista.com/statistics/191243/reported-burglary...
If you can make it win-win for everyone involved, then sure, but there's no such thing as a free lunch.
Individuals have agency; they are not slaves of any "root cause". The individual decision of a person to burgle may have correlations to statistical characteristics of their situation, but unless we understand the base rate of that set of circumstances we will never be able to address it without restricting the agency of others in that cohort.
And the level of intrusiveness necessary to establish the cohort of individuals requires a degree of surveillance that is ripe for abuse and incompatible with personal liberty.
They are also quite effective at subjecting completely innocent people to criminal investigations.
Exactly. Some people seem to have the opinion that a thing is good if it generally proves effective a capturing criminals. Others have the opinion that capturing criminals is only good if there's a very low risk of innocents being caught up in the process.
I'm in the latter group.
In general, though, doesn’t more (and more reliable) information permit more accurate conclusions? Wouldn’t this type of data reduce the risk of innocents being caught up, compared to asking cops or neighbors to hazard their best guess at who might have been around at the time of the crime?
This really depend on how you use the data, doesn't it?
If you have a presumption any suspect is innocent, and investigate until you have overwhelming evidence, yes, it does.
If you have a presumption whoever the algorithm selects is guilty, and investigate to prove it, this gives you exceptional capabilities to persecute whoever you catch.
I definitely agree that it depends on how you use the data, although that seems to bleed into a judicial rather than an investigatory role.
In the case of this geofence kind of data request, though, it seems to self-enforce that a little bit, though, right? If you cast too broad a net, then you “catch” hundreds of people, and the jury rolls their eyes at you pointing the finger at any arbitrary one of them. If you construe the request narrowly, then you get a small number of leads, but those leads are in actual fact that much more incriminating by dint of how precise they are.
In some sense it reminds me of the way the squishier sciences dealt with p-hacking by normalizing preregistration: you kind of have to set the “power” of your request ahead of time, or the black box that spits out the results becomes less useful to you (and less convincing to the people you have to make agree with you).
Yes. And law enforcement seems to have consistent problems with p-hacking any new kind of evidence they are allowed to have. That's why the use of things like this tends to be denied.
That said, if some country manages to create a law enforcement organization with the right culture, it does indeed become much less of a problem. But it needs to guarantee the culture won't change either, and that the data won't become available for different organizations.
What makes you think the government cares about accuracy? I’m pretty sure they only care about the size of the net, not what it catches.
I think cops (or at least their bosses) care about their arrests resulting in successful prosecutions.
A request ambiguous enough to net hundreds of suspects seems unlikely to net the investigator a successful prosecution. Not without corroborating evidence, which might be the fruit of a thorough investigation.
But if the initial request leads to an investigation that develops enough evidence to prosecute somebody—that is, if the person really did do the bad thing, and this was one of the ways the government figured that out—what is it that’s so abhorrent about this technique that makes it right to overlook the bad deed?
If the status quo is throwing around nonsense like bite marks and sneaker prints to try and associate somebody with a crime scene, geofenced mobile data requests seem like a smaller rather than a bigger net compared to “everybody with teeth who I have a hunch about” or “everybody who owns Sketchers.”
A successful prosecution is measured by a guilty plea or a finding of guilt. It is not the same thing as justice or convicting the right person. There are mountains of cases where it is clear that prosecutors are playing with dirty tricks for a conviction of anyone, rather than seeking to convict the right person.
I’m ok with TVs and jewelry getting stolen occasionally if it means my government is not constantly tracking my every move
Isn’t the whole geofence request paradigm an elegant compromise to address that, though? The requestors don’t get to track everyone’s every move. Instead, they have to specify exactly where and when based on a thing that actually happened, and the private corporation controlling all that location data decides whether or not the request is narrow enough to answer.
A mechanism like this allows them to realize the social benefits of that kind of a data trove existing, while providing some kind of a check on the way they use that data. However flimsy that check may be, it still seems really different from the government itself collecting and controlling all that data itself. And if anything, it takes the wind out of the argument that government properly should be the custodians of that kind of data: they can use it in the rare cases where they can describe a clear purpose, but they can’t just go frolicking through the movements of every person in their jurisdiction for funsies [0].
Is it necessarily bad that, in the US system, it turned out to be just the tacky companies slinging ads who control that utterly comprehensive archive of spy data, and it’s the guys with guns who have to ask nicely to access it?
[0] at least not through mobile geolocation data. Contrast with Flock Safety’s nationwide mutual data exchange compacts: https://www.newsobserver.com/news/state/north-carolina/artic...
That happens all the time during normal, legal place investigations. What's wrong with that? The concept of an investigation almost necessarily requires there to be innocent people involved, to differentiate the guilty from the innocent.
Eh. There is a big difference between an investigation ( as one sees in most American cinema hence why this particular phrasing is likely chosen ) and a fishing expedition, where LEOs go through data they in likelihood should not ( and to make it more annoying -- are highly unlikely to delete once done ).
I am saying this as a person who got LEO request for JUAN no last name and no other identifiers. As you can imagine, some of us are not amused by such requests.
edit: Location is much, much more telling than basic name and address.
They never make these decisions with regard for the societal benefits of solving crime, they just ban policing and congratulate themselves on preventing bad policing. They could have narrowed this down to a new definition of probable cause rather than saying "See that terrorist on video using his GPS to plant bombs at the orphanage? Sorry, we can't find 'im."
We have a rule-of-law system in the US, at least that’s the ideal. The court shouldn’t be changing the laws to make policing easier. That’s what the legislative branch is for.
I hear that a fair bit: "that's what the legislature is for". Has the Congress ever responded by actually passing a law?
Passing a law is a very high bar, especially with the filibuster, and a President can still veto it. It's supposed to be for checks and balances, but I see a lot of checks and very few balances.
I know that it's not the court's responsibility to fix the rest of the system. But it feels disingenuous to say that the legislature could fix it when they know perfectly well that they won't.
Despite the idea that Congress is gridlocked, it passed 78 laws in the 2022-2023 Congress.
How many of them are nontrivial?
Trivial as in renewing an old law, authorizing payment for the operations they already passed, or naming a post office.
What's left isn't zero, but it's not much more than a handful.
I’m not 100% clear on what the question is, in the sense that I want to give you a good-faith reading but, of course, the answer is obviously no. I doubt congress has even read any of our posts, haha.
I think the general expectation is that when chatting about politics the best hope we could have is that we could cause the other person (or some other person reading along) to vote differently, and maybe we’ll all get some better representatives if this conversation repeats enough times. It is a pretty indirect strategy, I don’t think it will have any big obvious wins.
I agree that our system has a lot of checks and might be too logjam-prone. (Although, over the last 8 years we’ve probably both appreciated this feature at some point or another, maybe at different times). But that’s the system we have, we should fix it in an above the board fashion, not hope for judges to circumvent it.
Well, to be entirely transparent, there’s a dual purpose to this. So maybe it is a bit disingenuous. I mean the ingenuous element is there: it is always good to keep in mind how our system works, and I do think people should target their irritation at the correct party.
But also, not many of our (democratically elected) representatives are willing to argue for increasing surveillance. So the reminder that it is their job is a slightly circuitous way of indicating that it is maybe not a popular idea. If it were, somebody would run on it.
Yes. Despite appearances to the contrary (and the exceptionally lethargic behavior of the current (118th) congress), Congress does actually pass laws (and revisions to existing laws), often in response to deficiencies identified by courts and law enforcement in what is currently on the books. If you're interested in following this, the library of congress website [1] has half-way decent filtering.
Forget responsibility, it's not even within the court's purview - in order for a ruling to stand (much less set precedent), it must be based on the law as it exists (including past precedent); ignoring that might feel good to watch, and would certainly make life interesting for participants in one specific case... But in no way compensates for an inability to legislate on the part of actual, elected, legislators.
If you're frustrated, vote for congressfolk who get things done vs. blather on, don't wish for a magic judge.
[1]: https://www.congress.gov/search?q=%7B%22source%22%3A%22legis...
Must have been the guy planting pipe bombs at the DNC during the insurrection.
There are more important things than punishing petty theft.
Residential burglary is not petty theft. If the house isn't empty, a person could be seriously injured or killed.
Well, that sounds like you’re not not scared of burglary, but rather assault and/or murder
I confess that finding any stranger in my house for any motive would frighten the hell out of me. I suspect that’s true of nearly the whole population.
They’re just seeking refuge.
And the residential burglars probably started with petty theft and got away with it, and became emboldened. Also see the broken window theory.
https://en.wikipedia.org/wiki/Broken_windows_theory
Note that BWT is not at all some accepted truth, and is merely a theory used to justify some (pretty bad) policy decisions. This is mentioned in the linked wiki page.
I wonder if there can be nuance that if a person owns a private location, they can request the data for their property. This seems reasonable to me. The only people on the property should have permission and already be known to the owner. The ones who don't are trespassing and can be suspects for crimes committed during that time.
You'd need geofencing of mobiles to be precise and accurate to about a meter for that to work. Is that the case?
"You'd need geofencing of mobiles to be precise and accurate to about a meter for that to work."
That's not true. There are many types of properties. Large properties could accomodate large margins of error, multiple times greater than the fine grain location data when using a poont in the middle of the property. There are some types of properties that this couldn't be applied to, such as apartments.
If there are 5G towers that might be possible
I'm interested by this, could you post some examples?
I feel for you but I'm hoping they are not. Look at they UK, that is where giving law enforcement this power leads. Citizens rounded up for protesting. "Show me everyone that was in the vicinity of the protest for x-y. UK even has a recent precedent where you are refused bail if you were just watching, you did not even have to participate.
https://web.archive.org/web/20240810105207/https://www.teleg...