EFF continues to fight back against high-tech general warrants that compel companies to search broad swaths of users’ personal data. In 2023, we saw victory and setbacks in a pair of criminal cases that challenged the constitutionality of geofence and keyword searches.
These types of warrants—mostly directed at Google—cast a dragnet that require a provider to search its entire reserve of user data to either identify everyone in a particular area (geofence) or everyone who has searched for a particular term (keyword). Police generally have no identified suspects. Instead, the usual basis for the warrant is to try and find a suspect by searching everyone’s data.
EFF has consistently argued these types of warrants lack particularity, are overbroad, and cannot be supported by probable cause. They resemble the unconstitutional “general warrants” at the founding that allowed exploratory rummaging through people’s belongings.
EFF Helped Argue the First Challenge to a Geofence Warrant at the Appellate Level
In April, the California Court of Appeal held that a geofence warrant seeking user information on all devices located within several densely-populateddensely populated areas in Los Angeles violated the Fourth Amendment. It became the first appellate court in the United States to review a geofence warrant. EFF filed an amicus brief and jointly argued the case before the court.
In People v. Meza, the court ruled that the warrant failed to put meaningful restrictions on law enforcement and was overbroad because law enforcement lacked probable cause to identify every person in the large search area. The Los Angeles Sheriff’s Department sought a warrant that would force Google to turn over identifying information for every device with a Google account that was within any of six locations over a five-hour window. The area included large apartment buildings, churches, barber shops, nail salons, medical centers, restaurants, a public library, and a union headquarters.
Despite ruling the warrant violated the Fourth Amendment, the court refused to suppress the evidence, finding the officers acted in good faith based on a facially valid warrant. The court also unfortunately found that the warrant did not violate California’s landmark Electronic Communications Privacy Act (CalECPA), which requires state warrants for electronic communication information to particularly describe the targeted individuals or accounts “as appropriate and reasonable.” While CalECPA has its own suppression remedy, the court held it only applied when there was a statutory violation, not when the warrant violated the Fourth Amendment alone. This is in clear contradiction to an earlier California geofence case, although that case was at the trial court, not at the Court of Appeal.
EFF Filed Two Briefs in First Big Ruling on Keyword Search Warrants
In October, the Colorado Supreme Court became the first state supreme court in the country to address the constitutionality of a keyword warrant—a digital dragnet tool that allows law enforcement to identify everyone who searched the internet for a specific term or phrase. In a weak and ultimately confusing opinion, the court upheld the warrant, finding the police relied on it in good faith. EFF filed two amicus briefs and was heavily involved in the case.
In People v. Seymour, the four-justice majority recognized that people have a constitutionally-protected privacy interest in their internet search queries and that these queries impact a person’s free speech rights. Nonetheless, the majority’s reasoning was cursory and at points mistaken. Although the court found that the Colorado constitution protects users’ privacy interests in their search queries associated with a user’s IP address, it held that the Fourth Amendment does not, due to the third-party doctrine—reasoning that federal courts have held that there is no expectation of privacy in IP addresses. We believe this ruling overlooked key facts and recent precedent.
EFF Will Continue to Fight to Convince Courts, Legislatures, and Companies
EFF plans to make a similar argument in a Pennsylvania case in January challenging a keyword warrant served on Google by the state police.
EFF has consistently argued in court, to lawmakers, and to tech companies themselves that these general warrants do not comport with the constitution. For example, we have urged Google to resist these warrants, be more transparent about their use, and minimize the data that law enforcement can gain access to. Google appears to be taking some of that advice by limiting its own access to users’ location data. The company recently announced a plan to allow users to store their location data directly on their device and automatically encrypt location data in the cloud—so that even Google can’t read it.
This year, at least one company has proved it is possible to resist geofence warrants by minimizing data collection. In Apple’s latest transparency report, it notes that it “does not have any data to provide in response to geofence warrants.”
This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.