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Federal appeals court finds geofence warrants “categorically” unconstitutional
- toomuchtodo 2y agoRelated: No reasonable expectation of privacy in one's Google location data - https://news.ycombinator.com/item?id=40958458 https://news.ycombinator.com/item?id=40958458 - July 2024 (163 comments)
- londons_explore 2y agoWonder if this case will make google backtrack on their move to purge all location data from their users server-based location histories?
- alistairSH 2y agoSo, 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.
- kevin42 2y agoOne 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.
- fortran77 2y agoThey 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.
- idle_zealot 2y agoThere are more important things than punishing petty theft.
- fortran77 2y agoResidential burglary is not petty theft. If the house isn't empty, a person could be seriously injured or killed.
- ryaneager 2y agoWell, that sounds like you’re not not scared of burglary, but rather assault and/or murder
- SoftTalker 2y agoAnd 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 https://en.wikipedia.org/wiki/Broken_windows_theory
- idle_zealot 2y agoNote 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.
- hed 2y ago> 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.
- cryptonector 2y agoIt also makes it hard for the government to appeal the ruling, which then might just stand as precedent throughout the 5th circuit.
- RetpolineDrama 2y agoWhat 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.
- cryptonector 2y agoThis 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.
- Supermancho 2y agoIf 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.
- salawat 2y agoNo 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.
- Terr_ 2y agoEven 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?
- wordpad25 2y agoI think maybe they will still use it, it's just not admissable as evidence in court
- hwillis 2y agohttps://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree 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.
- ceejayoz 2y agohttps://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction Another officer will get an "anonymous tip".
- FireBeyond 2y ago"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 https://www.youtube.com/watch?v=9GJa1_u-VLE
- hwillis 2y agoSearch 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.
- fsckboy 2y agoI'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
- cryptonector 2y agoIt's also "what devices Google saw in these areas at these times", which is much higher quality than cell tower triangulation.
- ImaCake 2y agoThe 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.
- xyst 2y agoCan a FOIA request reveal if your phone has ever been included in one of these geofence warrants?
- from-nibly 2y ago> 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.
- cryptonector 2y agoThis 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!
- sroussey 2y agoOr just pay a data broker.
- NegativeK 2y agoAs 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.
- bilbo0s 2y agoTrue. 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.
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- w10-1 2y ago> 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
- nvy 2y ago>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.
- w10-1 2y agoI 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.
- WarOnPrivacy 2y ago> 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.
- andrewla 2y agoInteresting 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.
- weaksauce 2y ago> do no evil google dropped that slogan a decade or more ago
- andrewla 2y ago> And remember ... don't be evil, and if you see something that you think isn't right -- speak up! [1] [1] http://abc.xyz/investor/google-code-of-conduct http://abc.xyz/investor/google-code-of-conduct
- mc32 2y agoPlease 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.
- ikmckenz 2y agoNo, 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.
- whartung 2y agoSo, 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?
- ckemere 2y agoNaive question - how is geofence different than security camera footage of the street? It also includes indoor areas?
- senorrib 2y agoThe footage only shows people that appear in front of the camera. The geofencing search touches data from everyone to the find people in a specific area.
- jmyeet 2y agoThis 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?
- gpm 2y ago> 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.
- datahack 2y agoThis 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.
- creer 2y agoInteresting constrast with the Las Vegas room searches.
- grahamjameson 2y agoPerhaps 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.
- yieldcrv 2y agoFifth Circuit being our only check and balance is amusing to me But I can appreciate the distributed nature of this system
- ggm 2y agoThe most important thing to remember reading this, for most of us (including myself) is the phrase: I Am Not A Lawyer The construction of "but what does it mean" invites the response: "it depends". I wouldn't depend on a theory or statement from anyone not involved in the law here. I have no idea how this will or will not limit the use of geofence technology, warrented or otherwise.
- dmvdoug 2y agoAnd, 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.
- hnburnsy 2y agoCities 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.
- user3939382 2y agoI like how they take 15 years to work these issues through the courts, meanwhile untold thousands of people have their rights violated.
- kylehotchkiss 2y agoThis is encouraging especially as an increasing number of our watches and cars have cellular chips in them. It’s not like you can just hid your phone in a silent pocket and be excluded from these anymore.
- dsq 2y agoThis is especially problematic as a bad actor will turn off or leave their phone at home, then go perform the crime. Since it is human to be lazy, the investigators may just go for the devices they drag into the net, leaving the real perp untouched.