Google’s Location Data Move Will Reshape Geofence Warrant Use

Google’s decision to limit its access to users’ location data will reshape police investigations well before appellate courts get a chance to rule on the constitutionality of law enforcement’s use of geofencing surveillance technology.

The Alphabet Inc. unit’s move to encrypt users’ Google Maps location history and store it on their devices, announced last week, will eventually render the company unable to fulfill geofence warrants, which typically seek to identify anyone with Google accounts who was within a given perimeter during the time of a crime.

Privacy advocates, who’ve backed the challenges to a practice they’ve labeled an unconstitutional invasion of privacy, lauded the move. But police and others contend that without the information in Google’s database, some cases may go unsolved or take longer to investigate.

Google’s decision comes as courts around the country scrutinize whether the use of geofence warrants violates the Fourth Amendment’s protection against unreasonable searches—an issue the US Court of Appeals for the Fourth Circuit is set to become the first appellate court to rule on next year.

It likely won’t be the last, regardless of how Google stores location data.

“Even though we’re not aware of any other companies that are sitting on this kind of a location database and subject to similar geofence warrants, the legal questions in these cases will remain very important because part of the question is whether it’s okay for the government to basically try to scoop up tons of innocent people’s data in an attempt to identify one person who was implicated in a crime,” said Nathan Freed Wessler, the deputy director of the Speech, Privacy, and Technology Project at the American Civil Liberties Union.

Wessler said the change will eventually end Google’s involvement in new geofence case filings and better protect people’s privacy from inclusion in a database that was “prone to abusive requests.”

Google Maps’ widespread use made the company a popular subject of geofence warrants, which have been used to prosecute racial justice protesters in Kenosha, Wis., and participants of the Jan. 6, 2021, insurrection at the US Capitol.

Geofence requests accounted for nearly 25% of all US warrants received by Google between 2018 and 2022, according to the company’s only report disclosing geofence request data. Apple, by comparison, said in a September transparency report that it doesn’t store the location data needed to comply with geofence requests.

After Google rolls out the location data-storage changes over the coming year, it won’t have access, either. Location history will be stored on each user’s device, and Google will encrypt whatever remains in the cloud so it can’t see it, according to a Dec. 12 company blog post.

A Google spokesperson didn’t answer specific questions about the company’s reasoning for the change.

Police Fallout

But the move will deprive law enforcement of a valuable tool. Police have used Google’s data to accelerate the progress of investigations more quickly than “more shoe-leather based approaches,” said Daniel Richman, a surveillance and criminal law professor at Columbia Law School and former federal prosecutor in the Southern District of New York.

A Bloomberg Businessweek investigation published in September found police were increasingly using geofence warrants in nonviolent cases and to search for people who weren’t associated with a crime.

Geofence warrants have become a popular initial step for investigating crimes before pursuing more comparably invasive actions like executing house search warrants, Richman said.

“It really gives the police a way to jump-start investigations and narrow down the range of people without intruding on their lives,” he said.

Losing access to Google’s data could result in “some mix of cases not solved or cases that require considerably more resource expenditure,” Richman added.

California, Texas, and Florida accounted for nearly 35% of all geofence warrants Google fielded between 2018 and 2020, according to the company’s report.

With Google’s location-tracking resource closing to law enforcement, investigators may turn to mobile device data or logs produced by cell phone towers to identify potential suspects, Richman said.

Geofencing warrants typically yield highly accurate satellite-based data, while requests to mobile carriers can be less precise because they instead reveal every phone within range of a cell tower.

Law enforcement agencies may also start buying more commercial databases from data brokers that aggregate people’s location information from smartphone apps, Wessler of the ACLU said.

Some companies selling location data directly to law enforcement have already sprung up. Fog Data Science has sold a device-location database built on information from third-party apps to at least 18 local, state, and federal bodies, according to the Electronic Frontier Foundation.

Whose Data?

Criminal defendants whose prosecutions or convictions relied on evidence resulting from geofence warrants have challenged their use, alleging it violates the Fourth Amendment’s protection against unreasonable searches.

There are at least three cases seeking to suppress geofence-based evidence before federal appellate courts in the Fourth, Fifth, and District of Columbia circuits.

Dozens more are percolating in the federal district courts, even as the likelihood of future geofencing cases dwindles after Google’s change takes effect, said Michael Price, the litigation director at the National Association of Criminal Defense Lawyers’ Fourth Amendment Center.

A key point of contention in litigation has been whether an individual’s location history is their private data or Google’s business records. Google’s decision indicates the former is true, he added.

“I would encourage anybody litigating one of these cases to make use of it because I think it really does put that question to bed of whose data is it and is it private,” Price said.

At a Dec. 8 hearing in US v. Chatrie, the first geofence challenge to arrive in a federal court of appeals, Fourth Circuit judges inquired whether the Google user agreed to have his data disclosed by opting in to have it stored. Price—representing Okello Chatrie, who was convicted of a robbery based in part on evidence obtained under a geofence warrant—argued the opt-in established a reasonable expectation of privacy under the Fourth Amendment.

But Google cutting off its ability to comply with geofence warrants may not have much practical legal impact on that case and others pending, said Orin Kerr, a Fourth Amendment and criminal procedure professor at UC Berkeley School of Law.

“The defendants don’t win these cases in part because even if a court concludes that there was a Fourth Amendment violation, which requires a whole lot of individual steps, the good faith exception to the exclusionary rule very, very likely means there’s no suppression,” Kerr said.

Google’s decision cutting off its ability to comply with geofence warrants may not have much practical legal impact on Chatrie’s case and the others pending. And while it closes one avenue for government access to personal data, it’s unknown whether Google will have access to unencrypted location data from its other products, said Sara Geoghegan, counsel at the Electronic Privacy Information Center.

Google’s terms of service tell users who disable location history tracking the company may still collect location data from searches or other apps.

“This decision by Google underscores how we need meaningful comprehensive general privacy protections that are much more than pinky promises from tech companies,” Geoghegan said. “This decision shows that Google has too much power here and controls too much information.”