Geofence orders unconstitutional, federal appeals court rules

Geofence orders, the ability for police to obtain a broad range of information about electronic devices in a given location, are unconstitutional under the Fourth Amendment, according to a ruling issued Friday by the Fifth Circuit Court of Appeals. The ruling is somewhat surprising given that the Fifth Circuit Court of Appeals is considered the most conservative appellate court, as Ars Technica points out, typically prioritizing police over individual liberties.

The case, United States v. Smith, involves Mississippi men who were arrested for an armed robbery in 2018. Police had no suspects for months and sought a geofence around the crime scene to narrow it down to a period of about an hour. Google provided the information, according to the EFF, and police arrested two men whose phones showed they were in the area at the time.

As EFF notes, citing the ruling, the Fifth Circuit found that a “significant problem with these orders” is that “Never contain a specific user who needs to be identified, only the time and geographic location where the user is located power “Show up after search.” The court found this to be “constitutionally insufficient.”

The ruling outlines three steps law enforcement must take in a geofence warrant: first, they give Google the time and location they want to search. Then, Google finds relatively anonymized data for every device communicating with Google at that location and time, searching through millions of records. The second step involved police contextualizing and narrowing the data, reviewing the anonymized list and figuring out which devices they want to learn more about. The third step is when police ask for identifying information about the accounts on the devices they find most interesting. At that point, Google provides the names and email addresses associated with the devices.

Interestingly, the new ruling differs from a Fourth Circuit ruling last month that rejected a similar argument about geofence warrants. In 2019, police issued about 9,000 geofence requests in a single year, rising to 11,500 geofence warrants in 2020. In 2021, about 25% of all warrants issued to Google were geofence warrants, according to the ruling.

Google did not immediately respond to emailed questions Wednesday. We will update this post if we receive a response.