Colorado Supreme Court To Hear Challenge Of Reverse Keyword Warrant Served To Google

Legal Issues

from the searching-everyone-to-find-probable-cause dept

Geofence warrants get all the hype. But Google also stores other data of interest to law enforcement: Google searches.

With these warrants, law enforcement asks Google to search its repositories for certain searches performed by users. Once the government has this data in hand, it will start asking Google to narrow things down. And, once sufficiently narrowed (one hopes), the government will again approach Google to ask for identifying data.

Like any government paperwork that initiates a search of all of Google’s data before making its way towards probable cause and particularity, reverse keyword warrants are problematic. They’re also relatively uncommon, which means they haven’t received much pushback from criminal suspects during prosecutions.

A reverse warrant used in the investigation of a fire that caused five deaths in Denver, Colorado is the Fourth Amendment unicorn. The suspects were tracked down by a reverse warrant that asked Google to return information on anyone searching the address of the torched home around the date of the crime.

The warrant may not have been overbroad but the actions this warrant required Google to engage in certainly were.

Police also obtained two Google geofence warrants, one on August 10, 2020, and another on October 6, 2020. […] For reference, Google had 592 million Location History users in 2018. To conduct a geofence search, regardless of the size or shape of the area, Google must comb through the account of every Location History user. That is because Google does not know which users may have responsive data before conducting the search. As a result, the two geofence warrants here, covering six geographic areas, led to the search of hundreds of millions of people, multiple times. Yet, like the prior searches, this approach also failed to produce any “fruitful” leads.

In addition to the keyword warrants, Denver cops went wardriving with a Stingray, hoping to find the perps by matching data coerced out of devices with law enforcement’s faux cell tower with the results of its reverse keyword warrant. Not much of this actually produced usable data, but between Google and the cops, millions of people were affected.

The problem with warrants that invert probable cause is that there’s not a lot of precedent to work with. And that allows courts to decide what “probable cause” means in these instances. In some cases, courts say all the probable cause needed is the probability that Google (the place being “searched”) houses responsive data. Others believe some actual probable cause is needed: cops should be able to show that these searches will find evidence of criminal activity, rather than simply a slimmed-down haystack from Google’s massive feed stores.

That’s one wrinkle. This is the other one. Some courts lean towards a more traditional definition of terms like “particularity,” which means cops need to narrow down their list of suspects before asking a third party to hand over a massive amount of (untargeted) data. Other courts feel the particularity requirement only attaches after law enforcement has received data from Google. If Google’s search is overly broad, it’s not a constitutional problem because Google is not the government.

The court handling this prosecution was one of the latter. It denied this motion to suppress last November.

The older teenagers’ defense attorneys had challenged the legality of the search and sought to suppress the evidence from Google as well as evidence found during subsequent searches of the teenagers’ cellphones and social media accounts. They argued the Google search warrant was “a massive fishing expedition” that violated millions of peoples’ right to privacy.

Denver District Court Judge Martin Egelhoff roundly rejected that argument during a hearing Wednesday and spent 90 minutes on the bench explaining his reasoning for denying all of the defense attorneys’ motions to suppress evidence.

This judge saw nothing wrong with the warrants — warrants twice challenged by Google prior to the defendant’s challenge. He said the warrants were “specific,” which seemingly means nothing more than the cops knew what information they wanted. He also said the warrant that demanded Google search all of its stuff for the stuff cops wanted was both “procedurally sound” and “supported by probable cause.”

Here’s where the trial court sided with courts who believe the Fourth Amendment isn’t implicated until law enforcement starts pawing through the data pile.

“I liken this search to looking for a needle in a haystack,” he said. “… And the fact that the haystack may be big, the fact the haystack may have a lot of information in it, doesn’t mean a targeted search in that haystack somehow implicates overbreadth.”

On one hand, he has a point. Someone required to hand over documents responsive to a search warrant or subpoena might have to sort through hundreds or thousands of unrelated documents to find the ones law enforcement wants. On the other hand (as long as we’re using physical analogies), this is barely removed from law enforcement demanding everyone’s search history and rooting through it to find what’s needed for a prosecution. The only difference is who’s doing the rooting around. Just because a private company is doing the first pass doesn’t necessarily excuse the government asking for everyone to be searched in order to locate the information it wants.

But that was the first judicial pass. The state’s top court will be taking a second pass.

The Supreme Court will rule on whether the search warrant, which Seymour’s petition called “a digital dragnet of immense proportions,” violates the Fourth Amendment of the U.S. and Colorado constitutions. 

The keyword warrant, known as a “reverse warrant,” is unlike traditional search warrants in that the process works in reverse to search everyone first and identify suspects later, according to the petition.

Apart from Seymour’s case, there are no state or federal decisions addressing keyword warrants, the petition said, making it “an issue of first impression in Colorado, and nationally as well.” Keyword warrants face judicial scrutiny for the first time in Seymour’s case. 

On one hand, the court will have a blank slate to work with. On the other hand, the absence of guiding precedent might result in the establishment of precedent that works against those directly or indirectly affected by extremely broad searches of third party data at the government’s behest.

While this case may deal with a serious crime (arson resulting in five deaths), it’s safe to assume if given the green light by the judiciary, cops will expand this practice to cover routine criminal activity. If the government is willing to use repurposed war gear (cell tower spoofers) to track down people who’ve stolen less than $20 worth of fast food, it will do the same thing with reverse keyword and geofence warrants.

In fact, it already has. A case we covered in 2017 involved a reverse keyword warrant being deployed to track down someone who managed to (temporarily) defraud a bank out of less than $30,000. While the bank was right to be upset, the use of novel investigative tools was hardly justified by the severity of the criminal act, which only affected federally insured funds represented by 1s and 0s on the bank balance sheet.

Hopefully, Colorado’s top court will realize the latent threat posed by these warrants and establish guardrails for deployment. To do otherwise will only encourage cops to skirt the Constitution while asking private companies to do most of their investigative work for them. It’s not that the government should never be able to utilize these options. It’s that when it does, it should be forcefully restrained from indulging in its worst habits.

Filed Under: 4th amendment, colorado, denver, keyword search warrant, reverse warrant
Companies: google