The last time your phone asked you to allow this or that app access to your location data, you may have had some trepidation about how much Apple or Google know about you. You may have worried about what might come of that, or read about China’s use of the data to track anti-lockdown protesters. What you probably didn’t realize is Google has already searched your data on behalf of the federal government to see if you were involved with January 6th.
But last month, the federal district court in DC issued an opinion in the case of one of the many defendants who stands accused of sacking the Capitol in the wake of the 2020 election.
And with it, Judge Rudolph Contreras became the first federal district judge to approve a “Geofence” warrant, endorsing a recent police innovation: searching the cell phone history of every American to check who happened to be in the area of some potential crime.
The “Geofence” in this context refers to cell phone location data collected by Google from users of its Android operating system, as well as iPhone users who use apps such as Google Maps. Location tracking can be turned off, but most users allow it for the convenience of getting directions, tracking their daily jog, or finding the nearest Chipotle. The Government’s warrant demanded location history for every Google account holder within a range of longitude and latitude roughly corresponding to the Capitol building on the afternoon of January 6, 2021, along with similar data from that morning and evening (to filter out Hill staff and security guards).
It’s not clear this information was even needed: This defendant was apprehended within the building that day, carrying knives and pepper spray, and features on various security cameras — his whereabouts are not in question. Many of his coreligionists were considerate enough to live stream their antics themselves. While tracking down every participant in what was dubbed the Beer Belly Putsch is impractical, prosecutors have not lacked for defendants, or for evidence against them. But the government nonetheless decided to resort to a level of mass surveillance without precedent in history or criminal law. This is only the second federal district judge to rule on such a warrant, and the first, in the Eastern District of Virginia, found it “invalid for lack of particularized probable cause” (though that judge declined to suppress the evidence on the basis of other Fourth Amendment loopholes created by the Supreme Court).
That particular requirement comes from the Fourth Amendment itself, which calls for every warrant to “particularly describ[e] the place to be searched, and the persons or things to be seized.” This means that, for instance, the warrant issued last year for former President Trump’s Florida residence did not simply say “search the house,” but detailed specific rooms to be searched for specific things (boxes of documents). The cops can’t — or at least are not supposed to — dump out your underwear drawer based on a tip that you’re hiding cocaine in your basement.