N.D.Ill. rejects geofence warrant for cell phone and owner data as overbroad

A third geofence warrant to attempt to determine who was around stolen prescription medication. It too is denied as overbroad. In re Search of Info. Stored at Premises Controlled by Google, 2020 U.S. Dist. LEXIS 152712 (N.D. Ill. Aug. 24, 2020):

Before the Court is the government’s Amended Application for a Google Geofence Search Warrant (“the Amended Application”) (D.E. 6). While investigating the suspected theft of prescription medications, the government has developed evidence indicating that an unknown individual (“the Unknown Subject”) entered two physical locations to receive and ship the stolen medication at specific times. To try to identify the Unknown Subject, the government wants to know which mobile or smartphone devices that transmit their location information to service provider Google, Inc. (“Google”) can be known by Google to have been at those two locations at the times when the Unknown Subject was there. The government has proposed a “geofence” search warrant to obtain Google’s historical information about what devices were at those locations at those times.

INTRODUCTION

The idea behind a geofence warrant is to cast a virtual net — in the form of the geofence — around a particular location for a particular time frame. The government seeks to erect three geofences. Two would be at the same location (but for different time frames), and one would be at a second location. The window for each geofence is a 45-minute time period on a particular day. As to each of these geofences, the government proposes that Google be compelled to disclose a list of unique device identifiers for devices known by Google to have traversed the respective geofences. The purpose of the geofences is to identify the devices known by Google to have been in the geofences during the 45-minute time frames around the Unknown Subject’s appearances on surveillance video entering the two locations on three occasions. By identifying the cell phones that traversed any of the geofences, the government hopes to identify the person suspected in the theft of the pharmaceuticals, under the theory that at least one of the identified devices might be associated with the Unknown Subject.

The government’s application is the third submitted by the government in this investigation. …

. . .

Conclusion

The technological capability of law enforcement to gather information, from service providers like Google and others, continues to grow, as demonstrated here by the Amended Application. Our appeals court has recognized, for quite some time now, that “[t]echnological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive.” United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007). In Carpenter and Riley, the Supreme Court recognized that as the use of mobile electronic devices becomes more and more ubiquitous, the privacy interests of the general public using these devices, including the privacy interest in a person’s physical location at a particular point in time, warrants protection. 138 S. Ct at 2217; see Riley, 573 U.S. at 393. Longstanding Fourth Amendment principles of probable cause and particularity govern this case, and the technological advances making possible the government’s seizure of the type of personal information sought in this case must not diminish the force and scope of Fourth Amendment protections with roots in the reviled abuses of colonial times. Simply because Google can collect this information, or because the government can obtain it from Google under a “constrained” approach “justified” by the investigation’s parameters, does not mean that the approach clears the hurdles of Fourth Amendment probable cause and particularity. But nor does the Court intend to suggest that geofence warrants are categorically unconstitutional. Each specific proposed application must comply with longstanding Fourth Amendment constitutional protections of individual privacy rights, which should not be diminished by increased technical capability for intrusion, or by how effective those capabilities might be at solving crimes. The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting. But if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons without probable cause and in a manner that allows officials to “rummage where they please in order to see what turns up,” Sanchez-Jara, 889 F.3d at 421, even if they have reason to believe something will turn up, a federal court in the United States of America should not permit the intrusion. Nowhere in Fourth Amendment jurisprudence has the end been held to justify unconstitutional means.

For the foregoing reasons, and by applying the Fourth Amendment to the government’s proposed warrant in the Amended Application, the Court must deny the Amended Application and the warrant requested under it.

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