The Police Surveillance Tool Too Dangerous to Ignore
Reading Time: 5 minutesNew York Could Ban One of the Most Chilling Tools of Police Surveillance, Bipartisan efforts to tackle geofence warrants show that surveillance is dangerous on both sides of the aisle., New York geofence warrants: Maybe protecting privacy doesn’t have to b
In 2020 lawmakers in New York introduced legislation taking aim at one of the most chilling tools of modern government surveillance: geofence warrants. It would have been easy to see this as a New York phenomenon, unlikely replicated. The state is often a legislative bastion for traditionally liberal causes, and at first glance, the fight against geofence warrants—a tool police officers use to, among other things, track protesters—might be slotted into that category. But somewhat surprisingly, New York’s proposal is being replicated across the country, including in traditionally conservative states like Missouri and Utah.
The unexpectedly bipartisan efforts against geofence warrants provide a rare glimmer of hope that perhaps the fight against invasive surveillance could be a more collaborative one. Conservatives and progressives alike both worry about the dangers of government overreach enabled by dragnet searches like those facilitated through geofence warrants. And while protecting Americans from surveillance abuses has rarely been a legislative priority, geofence searches are so offensive to the Constitution that this campaign could provide a playbook for bringing both parties together on other privacy issues.
First, it’s worth understanding what geofence warrants do. Unlike a traditional warrant, which requires that officers provide probable cause that a specific individual has committed a crime, geofence warrants reverse this process, getting a warrant in order to find probable cause. This is because with a geofence warrant, officers obtain a legal order forcing companies like Google to identify every user in a given geographic area. To do so, they draw a geofence on a map to specify a search radius ranging from a single room to an entire city. Officers provide probable cause that one person committed a crime within that geofence, but they also get location history data and personal information from thousands of other people who have the misfortune of simply falling in the search area.
A similar threat is posed by keyword search warrants, a sort of sister to geofence warrants, which force search engines to identify every user who has made a search query. This can be a specific address, a phrase, or nearly anything else that a user might search for. The New York legislation would ban both geofence warrants and keyword search warrants. Keyword warrants are much newer and comparatively rare, so we don’t have good data on how often they’re used. But geofence warrants have grown exponentially. Since first being introduced in 2018, they’ve been issued tens of thousands of times, and they now account for a majority of search warrants sent to Google from American law enforcement. Geofence and keyword warrants may be a terrible way to predict or prevent crime, but they are terrifyingly effective at tracking protests, houses of worship, and other sensitive sites.
This power and susceptibility to abuse have helped to galvanize people across the political spectrum against geofence warrants. When first introduced in New York state in 2020, the geofence ban was seen as part of a broader effort to combat the unchecked growth of police power. For proponents of the bill in the New York Legislature, rolling back geofence warrants tapped into the same civil rights movements that drove Black Lives Matter protests and mass mobilizations against family separation and deportation. In New York, the law was firmly a progressive rejoinder to the growing threat that police powers posed to communities of color and other historically marginalized groups.
The bill, though, didn’t remain confined to a purely partisan or progressive lens. The reality of one-party rule is that GOP support is basically a non-factor in passing legislation in New York—but, perhaps surprisingly, similar proposals are being advanced by Republicans in states including Missouri and Utah. Earlier this year, Republican Ben Baker introduced a bill in Missouri modeled almost entirely on the New York proposal. The ban is gaining support there. Similarly, Utah Republicans in March introduced a mirror of the New York legislation. The Utah ban was significantly watered down before it passed, requiring only that police report their use of geofence and keyword warrants. The revised bill is a disappointment for those who’d hoped for a ban, but it’s still a step in the right direction.
Although Republicans may have much more faith in local police, they’re worried about other agencies weaponizing geofence warrants in ways that curtail core constitutional rights. They fear federal law enforcement probing leading conservative activists. In 2019 the Manhattan district attorney’s office obtained a geofence warrant for the site of a fight involving the Proud Boys, and the Department of Justice similarly used this tool to obtain location history data for individuals around the Capitol on Jan. 6, 2021. When we went to Missouri to testify in favor of a geofence ban earlier this year, we heard echoes of New York lawmakers’ fears, just with different agencies (namely, federal law enforcement) viewed as the entity posing a threat. The rhetoric may be different, but legislators saw the need for the same solution: a geofence ban.
You might be wondering how these warrants were constitutional in the first place, given their danger and broad bipartisan condemnation. In our view, they never were. But the nature of the warrant process is that magistrate judges often decide these questions in secret, relying on the unchallenged word of police and prosecutors, and without an opportunity for the defendant to contest what’s being argued. Only now, years later, are those who were tracked by geofence warrants starting to get their day in court.
Last year, a U.S. district court judge held that a geofence warrant ‘plainly violates’ the Fourth Amendment’s protections against unreasonable search and seizure. At least one state court also struck down the practice, and now even some of the magistrate judges are beginning to refuse to approve geofence warrants. One federal magistrate wrote, ‘The government’s undisciplined and overuse of this investigative technique in run-of-the-mill cases that present no urgency or imminent danger poses concerns to our collective sense of privacy and trust in law enforcement officials.’ But even as the courts slowly move to reverse the harms they enabled, there still is an urgent need for lawmakers to act, passing laws today rather than waiting years for the case law to catch up.
There’s another part of the geolocation threat that’s rallying bipartisan concern, though it’s circumvented the courts. In addition to using sweeping legal tools like geofence and keyword warrants to target our data, officers are also using public funds to purchase private data through data brokers. This allows police to avoid the court system completely while getting access to information such as location history, search data, and utility records. And alarmingly, the courts have held that when officers use money instead of the force of law to get our data, the Constitution simply doesn’t apply.
That’s why New York’s geofence and keyword warrant ban would also bar police purchases of similar data, and related efforts have drawn bipartisan support from Washington. In 2021 Republican Sen. Rand Paul and Democratic Sen. Ron Wyden introduced the Fourth Amendment Is Not for Sale Act, legislation that would outlaw police purchases of private data. As always, legislation moves slower in Washington, but it’s proof that there is nationally growing momentum to tackle the threat of police data purchases and mass location tracking.
In New York, the bill that was first introduced in 2020 has been reintroduced in each legislative session since, with support growing each year. There has been a strong push to get it passed before New York’s legislative session ends this week. But even as the number of co-sponsors swells and more elected officials vocally call for its passage, time is running out on the state’s half-year legislative session.
Ultimately, the fight against the ballooning surveillance state remains an uphill battle. There are still lawmakers from both parties unwilling to stand up against these abuses. But perhaps because of the novelty of some of these threats and the scale of the tracking’s omnipresence, there’s hope for Republicans and Democrats to find common ground in their resistance to digital dragnets. And early indications suggest that a growing number of lawmakers across the country will introduce parallel bills in other states too. The surveillance fight provides proof that no matter how divided partisans have become, there are still some fundamental principles that can bring us together.
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