‘Geofence order’ unconstitutional, Virginia judge rules

RICHMOND, Va. (AP) — An injunction that used Google’s location history to find people near the scene of a bank robbery in 2019 violated their constitutional protections against unreasonable searches, a federal judge has ruled.

The decision — believed to be the first of its kind — could make it harder for police to continue using an investigative technique that has exploded in popularity in recent years, privacy experts say.

The ruling came earlier this month in a closely followed Virginia case in which the robbery suspect argued that using a “geofence warrant” violated the Fourth Amendment. Geofence orders seek location data about any person within a specific location over a period of time. In order to work, those people need to use cell phones or other electronic devices with the location history feature turned on.

U.S. District Judge Hannah Lauck found the warrant violated the Constitution by collecting the location histories of people near the bank without any evidence that they had anything to do with the robbery.

“The warrant simply contained no facts to establish probable reason for collecting such broad and probing data from each of these individuals,” Lauck wrote in her statement.

The judge said she was not ruling on whether geofence injunctions could ever comply with the Fourth Amendment, but privacy advocates said the decision could make it more difficult for police to convince magistrates to grant such injunctions.

“She says this is a general search that just clears people, most of whom have nothing to do with the thing you’re investigating,” said Jennifer Stisa Granick, American Civil Liberties Union surveillance and cybersecurity consultant. “You have to seriously consider the impact on non-involved people and their privacy, and the balance of power between people and law enforcement.”

Jennifer Lynch, director of oversight litigation for the Electronic Frontier Foundation, a digital rights nonprofit, said attorneys across the country could cite the ruling in their own cases as it is believed to be the first time a federal court has filed a lawsuit. ruling on the constitutionality of a geofence order.

“It’s helpful for other judges to see how a judge has handled this, especially because the technology is so new,” Lynch said.

Police say geofence warrants are a useful investigative technique that has helped them become suspects in a range of crimes across the country, including home invasions in Minnesota, a murder in Georgia and a deadly shooting in North Carolina. Defense attorneys, however, say they are trapping innocent people and violating the privacy of anyone whose cell phone is near the crime scene.

In the Virginia case, on May 20, 2019, a man walked into Call Federal Credit Union in Midlothian, brandished a gun and threatened to kill a cashier’s family if he was not given at least $100,000 in cash. The robber, who was seen on surveillance video with a cell phone in his hand, escaped with $195,000.

After following a few leads that did not materialize, police went to a magistrate and obtained a geofence search warrant, which involved them looking up Google’s location history for devices within 150 meters (164 yards) of the bank around the time of the the robbery.

Google passed on location data from 19 devices without providing any identifying information. The police then limited their request to three devices, for which Google provided the information. Police arrested Okello Chatrie, who was charged with armed robbery.

Bank cameras showed the robber came and went from an area where a church employee saw a suspicious person. Chatrie’s location history matched these moves.

Chatrie’s attorneys declined to comment on Lauck’s ruling. In court documents, they called the warrant the equivalent of “searching the bags of every person walking along Broadway for a theft in Times Square.”

Chatrie, who has pleaded not guilty and is awaiting trial, will not benefit from Lauck’s ruling. She turned down his attorneys’ request to suppress the evidence provided by the warrant, finding that the detective was not at fault for consulting prosecutors before applying for the warrant, relying on his previous experience with obtaining three similar warrants.

Google says it will review the court’s ruling. “We vigorously protect the privacy of our users, including by curbing overly broad requests, while supporting the important work of law enforcement,” the company said in a statement.

In a legal briefing, Google said geofence requests are up 1,500% from 2017 to 2018 and another 500% from 2018 to 2019. Google now reports that geofence warranties make up more than 25% of all warrants Google receives in the US. the judge said. wrote in her statement.

Prosecutors declined to comment. In court documents, they claimed that Chatrie had no reasonable expectation of privacy since he voluntarily opted in to Google’s location history.

Lauck urged “legislative action” on the matter, noting that there is currently no law prohibiting Google and other companies from collecting and using large amounts of data from their customers.

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