We periodically remind our American readers that by simply going about their daily lives, they’re likely committing multiple crimes. As we pointed out last month, for instance, you could be imprisoned for walking your dog on federal property without a leash, or with too long a leash. Indeed, as attorney Harvey Silvergate has pointed out, the average American likely commits several felonies each day, often without knowing it.
At the same time, the surveillance infrastructure created to detect and prosecute these crimes has greatly expanded. Consider the so-called “geofence warrant,” in which a law enforcement agency is granted access by a court to location data from every mobile device connected to a cellphone network or to the internet in a particular area within a specific time range. It’s essentially a warrant in reverse, with hundreds or even thousands of innocent people thrown into a surveillance dragnet.
These types of warrants are sought-after by law enforcement. Google likely receives more of these warrants than any other company since its Android phones are the most popular type of cellphone. And even iPhones typically use apps from Google such as Gmail or Google Calendar. The company reports processing more than 75 times as many geofence warrants as it did only four years ago.
If Google receives a geofence warrant and determines your data is relevant to law enforcement, you’ll receive an email informing you that law enforcement is requesting it. You’ll only have only a few days to go to court to challenge it. And keep in mind that if Uncle Sam alleges that “national security” is at stake, no warrant—or notification—is necessary.
Thanks to the “surveillance capitalism” phenomenon, businesses are cashing in on geofence warrants. A company called Hawk Analytics has a webinar that purports to “take you through everything Google” and to serve as a guide on how to put together a geofence warrant. It’s a “can’t miss webinar for today’s investigator,” although it’s offered to law enforcement only.
If there’s any good news about geofence warrants, it’s that if you’re relaxing in your home, you won’t be caught up in a geofence dragnet, unless a crime is alleged to have occurred near it. But there’s another type of warrant in reverse that does affect you if you use the Google search engine (and who doesn’t?): the “keyword warrant.”
This type of warrant is even more far-reaching than a geofence warrant because it targets every person who used a search engine like Google to search for a specific word or phrase. That means anyone in the entire world who searches for that term is a possible suspect. Keep that in mind next time you search for a term that might later be deemed suspicious. Some searches that might get attention from authorities are obvious, like “pipe bomb” or “how to poison someone,” but others, such as someone’s address, are less so.
We first learned of keyword warrants during the racketeering trial of singer R. Kelly. Police were trying to prove that one of Kelly’s associates was engaged in arson and witness intimidation. On June 15, 2020, a federal magistrate authorized a keyword warrant for Google users who had searched for a particular address close to the time of a suspicious fire.
As with a geofence warrant, the vast majority of those caught up in a keyword warrant will be innocent of any wrongdoing. And judges who approve such warrants have no idea how many individuals will be caught up in the search and targeted for further investigation.
Both geofence and keyword warrants are in our view blatantly unconstitutional because they fail the Fourth Amendment’s “particularity” requirement. A court order compelling Google to disclose a suspected criminal’s location data and search history, based on probable cause that such person committed a crime, is a narrow and targeted search that squares with the particularity rule. But it’s quite another matter to treat each Android phone owner in a geographical area or Google user anywhere in the world who searches for a specific phrase as a criminal suspect.
That said, we have little confidence the courts will restrict these types of warrants. While there have been some isolated victories in exceptional cases, the sheer volume of warrants makes it unlikely that those targeted will be able to challenge them in the limited amount of time available—or simply not have the money available to hire an attorney to do so.
How can you protect yourself? For geofence warrants, one simple, albeit draconian solution is to throw away your smartphone. Replace it with a burner—a cheap mobile phone and prepaid voice and internet service purchased with cash. Follow this link to learn where to buy one and set it up.
Otherwise, turn off “find my phone” services, Wi-Fi, and Bluetooth on your device. And of course, turn off location sharing on your smartphone, although that will seriously limit the functionality of many of your apps.
For keyword warrants, one solution is to ditch Google searches, and use the many available alternatives that don’t maintain search records, such as Duck, Duck, Go, or our favorite, Epic Search. But we occasionally don’t find satisfactory search results with these products and need to resort to Google. Fortunately, in that case there’s an easy way to protect yourself: use a virtual private network (VPN) when you’re searching.
In our case, we routinely use a VPN for all our internet activity, not just Google searches. The reason is that a VPN will encrypt your entire data stream. That will not only make it impossible for Google (or any other search engine) to comply with a keyword warrant, but also protect you from surveillance by your internet service provider. Here at The Nestmann Group, we use one called ExpressVPN.
A good time to throw out your smartphone, or at least begin to secure it, and start using a VPN, would be today. Big Brother certainly isn’t going to do it for you.
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