Abortion Fears Spur Reverse Search Warrant Bill in California

Privacy advocates are pushing California to be the first to crack down on a controversial investigative tool used by police that compels technology companies to turn over geolocation or search data to find suspects.

The state Assembly earlier this month passed legislation that would selectively prohibit the practice (A.B. 793) known as “reverse search warrants,” spurred by fears that red state prosecutors could use them to target abortion seekers. The searches are used to find suspects and not to gather evidence on a targeted individual.

But proponents barely mustered enough votes to clear the necessary hurdle of receiving the support of two-thirds of the Assembly amid concerns from law enforcement groups that the measure could impede their jobs.

California is the latest of a few states considering such bans, including New York and Missouri, though neither have made much progress. There is currently no federal or state law that prohibits such warrants, but Utah became the first state to regulate them this year.

The effort is buoyed in the Golden State given California’s location as the home of tech giants, which would bring significance to any potential ban the state passes, said Michael Price, a litigation director at the National Association of Criminal Defense Lawyers, who is tracking the issue. The organization has not taken a stance on the California bill.

The measure “gives companies like Google a way to stand up in court and assert the rights of their users,” said Price. “It’s not that they don’t already have the ability to do that, but [the bill] will strengthen their ability to do that.”

What Reverse Warrants Are

Traditional warrants typically require a law enforcement officer to provide probable cause that an individual committed a crime. Reverse warrants flip that procedure around by using a court order to find the suspect. The efforts mainly come in the form of geofence warrants, where a tech company provides data on every single user within a geographic area of the crime, or keyword search warrants, where a search engine identifies every person who made a specific search query.

The use of such police techniques has become more commonplace. A transparency report by Google showed that the number of geofence warrants nationwide it received rose in 2020 to 11,500 from less than 1,000 in 2018. There were about 70 reverse warrants in California last year, according to state data, though that figure is likely underreported.

Critics claim the practice violates the Fourth Amendment against unreasonable searches and seizures, scooping up vast amounts of sensitive information from innocent people. Court rulings on whether such searches are constitutional have been mixed, and legal battles and appeals haven’t resolved.

“Carrying a smartphone, using social media, and allowing apps to know our location has become a part of our daily routines,” said Becca Cramer-Mowder, legislative advocate at ACLU California Action. “But it means that each of us has a vast data trail that is vulnerable to government abuse.”

Privacy advocates in the Golden State have capitalized particularly on the abortion debate to create a sense of urgency in the majority-Democratic legislature. With some states criminalizing abortion after the overturn of Roe v. Wade, the California bill would require California tech companies not to comply with such requests, including warrants looking for location data around abortion clinics.

It’s unclear how often such warrants have targeted abortion seekers, but advocates point to instances where they were used to investigate mass protests or where traditional warrants sought evidence of seeking reproductive health care.

“This bill is one we need to absolutely have in place if we actually want to become a sanctuary state” for abortion seekers, said Assemblymember Mia Bonta (D), author of the bill, during its floor vote.

Public Safety Concern

The Bonta bill sailed through committees without opposition. But local prosecutors later expressed concern over a complete ban on reverse warrants, calling them “one of the most effective methods of gathering crucial data necessary to help accurately identify perpetrators of every type of crime,” wrote Kim Stone, a lobbyist for the California District Attorneys Association, in a letter to Bonta.

Keyword searches through such reverse search warrants are crucial to stopping child pornography, opponents argue. They also contend geofence warrants have been used to solve high-profile murder cases that could not be prosecuted otherwise. Hate crimes and domestic terrorism would be harder to tackle under the measure, they added.

Price dismissed those concerns, arguing the risk of unreasonable search and seizures is more significant.

“Law enforcement was able to solve crimes long before reverse warrants. The crimes are not new,” Price said. “It’s not something that law enforcement has been relying on for decades, and we’re taking it away. This is a brand-new thing that they’re trying out and hoping to use as like pressing the easy button.”

Bonta has agreed to compromise with law enforcement groups to move her bill forward, by narrowing it to focus only on reverse warrants targeting reproductive health care and gender-affirming care. Protecting abortion and transgender care was never something they opposed, law enforcement officials said. The changes are likely to remove significant opposition. The specific language over the compromise is expected to be added in the state Senate.

While the measure will not ultimately have a complete ban on such warrants, privacy advocates said the Bonta legislation is still a good initial step to protect the state’s most vulnerable residents.

“Law enforcement has a plethora of tools to ensure we bring people to justice,” said Bonta. “The opportunity that we have now is to ensure that we operate as a sanctuary state, and ensure we have the ability to narrowly scope this bill so that it has the ability to move forward.”