Scaling The (Geo)Fence: New York Lawmakers Push To Outlaw Geofence Warrants Amid Ongoing National Debate For Police Reform

• Published date: 23 June 2020
• Subject Matter: Criminal Law, Privacy, Privacy Protection, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Duane Morris LLP
• Author: Ms Nicolette J. Zulli

In the wake of national protests against police brutality surrounding the death of George Floyd, and ongoing national debate for police reform, New York lawmakers have seized the opportunity to take a stand against law enforcement's use of a controversial surveillance technique, known as the geofence warrant, or "reverse location search."

For years, technology companies have responded to court orders for specific users' information. But, in 2016, federal law enforcement used a new investigative method, the geofence warrant, to demand Google accounts, not of specific suspects of a crime, but from any mobile devices that veered close to the scene of a crime. Since then, the practice of geofence warrants or reverse location searches as investigatory tools has spread to local police departments nationwide, including in California, Florida, Minnesota, and Washington. Police have used the geofence tactic for serious cases like murder investigations, as well as nonviolent property crimes like burglaries.

In the context of a protest, for example, the use of geofencing would allow police to get information on every protestor located in the vicinity at the time a crime was committed during the protest through one single information request.

The idea is that rather than seeking a traditional warrant for a specific person or place, backed up with probable cause, police have been relying on the convenience afforded by geofencing, to sweep up information on any device that happened to be in the vicinity of a crime.

Law enforcement can achieve these searches in one of two ways: with or without a warrant. To obtain a geofence warrant, officers typically define an area of interest and a time period. The size of the area may vary. The amount of time covered by such warrants is also not uniform. Officers then submit a warrant request or affidavit for search warrant to the appropriate court for a judge's approval. Notably, the police do not need a person's name to get a judge to sign off on a geofence warrant. In a geofence warrant request from police in Virginia in 2019, the probable cause included that the suspect had a phone in his hand during a bank robbery. This was sufficient for the judge to grant the geofence warrant request, which led Google to hand over cellphone location data on 19 people from the requested time frame. A 2019 report from Minnesota Public Radio found that judges signed off on geofence warrant requests in as little as four minutes, sometimes without...