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Google Not Subject to Geofence Search Warrant for Time Being

Aug. 25, 2020, 2:50 PM

A geofence warrant application, submitted by officers investigating the theft of prescription drugs, to obtain mobile phone location information from Google was denied as too broad by a federal district court in Illinois.

In what it said is the first federal court case analyzing the Fourth Amendment requirements for geofence warrants, the opinion by Judge Gabriel A. Fuentes of the U.S. District Court for the Northern District of Illinois said the application cast too broad a net to survive scrutiny.

A geofence is a virtual fence around a particular location for particular times. Because the government knows that an unknown suspect entered two locations to receive and ship stolen medication, the investigators want Google to disclose anonymized data about cell phones within the specified areas for a 45-minute time period on specific dates so they can analyze the data and identify the suspect, it said.

This is the third time the investigators have applied for the geofence warrant, the court said. Each of the previous applications were too broad, and, although the government continues to narrow the scope, the application here is similarly broad, it said.

The application seeks the location histories of all individuals who enter the fence without probable cause to justify accessing that information for most of them, the court said. Although the information will be anonymized, the warrant also puts no limitation on the government’s discretion on how it will go about selecting a suspect, it said.

The government’s qualifying language in the application that it will only use information that “identifies individuals who committed or witnessed the offense,” spells out no procedure for Google to figure out who those people are, the court said.

Although geofence warrants aren’t categorically unconstitutional, their applications must comply with the constitutional protections of individual privacy, the court said. The government simply can’t rummage where it pleases to see what turns up, it said.

The case is In re Search of Info. Stored at Premises Controlled by Google, 2020 BL 320861, N.D. Ill., No. 20 M 392, 8/24/20.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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