4 Investigates: Fighting the Geofence – KOB.com

The governor, mayor, police and a congresswoman gathered in Albuquerque to allay fears after three Muslims were shot dead in a similar ambush attack within a 10-day span in 2022.

The unusual show of unity after the series of violence stemmed from the belief that the killings were deliberate and that others were at risk. The government, at every level, used its authority to catch the killer.

It wasn’t until several years later that a federal search warrant was unearthed that revealed the scope of the government’s attempt to search citizens’ cellphone data.

GEOFENCE ORDERS

Geofencing search warrants are designed to identify people who were near a crime scene. To do this, Google asks them to provide the names of people whose devices allow it to track and record the places they visited.

The federal government began asking Google for “Location History” data nearly a decade ago. According to a 2022 Slate article, the first geofence order was filed in 2016, and its number has grown exponentially since then.

After the killings of Aftab Hussein, Muhammad Afzaal Hussein and Naeem Hussein in Albuquerque, the FBI tried to force Google to hand over device data in seven different areas for nine hours, representing more than 400 acres. One location was the Islamic Center of New Mexico for three hours during the funeral of the two murdered men.

“THIS IS VERY DISTURBING”

“Uncomfortable and violated,” Abbas Akhil said after learning he was in one of the places whose location the government was trying to gather from Google.

“This is a clear example of abuse of power and violation of our right to privacy,” Akhil said.

As a former president of the Islamic Center of New Mexico, Akhil attended the funeral of the murder victims along with about 1,000 other people.

“So is this a justified search?” Akhil said. “I am not just speaking as a minority or ethnic community, this applies to everyone. This is a national problem.”

Google identified 3,100 devices linked to FBI search engine in Albuquerque.

4 Investigates asked the U.S. Attorney for New Mexico, Alex Uballez, if the scope of the search is too broad.

“Not that we need information on everyone in those locations, but who is the person who committed each of those crimes that we believe are somehow connected,” Uballez said. “In this case, we are actively pursuing someone who we believe may pose a continuing threat to others.”

Uballez did not say the search for cellphone data at the funeral went too far.

“I think your concerns are real, I think your concerns are valid. But I think it’s worth taking a closer look at the opinions and some of the language in those opinions in the Fifth and Fourth Circuits,” Uballez said.

A problem that transcends political boundaries.

“District splits” in the 4th and 5th U.S. Courts of Appeals clear the way for the U.S. Supreme Court to rule on the Fourth Amendment’s impact on the collection of cellphone user location data.

Uballez, President Biden’s nominee, sees the problem similarly to his predecessor.

“I don’t think the federal government should be putting people under surveillance every day without a criminal background,” said John Anderson, a former U.S. attorney and Trump appointee. “But I think, again, there are privacy implications when people are brought into this type of investigation.”

According to UNM law professor Joshua Kastenberg, both the far right and the far left oppose strengthening the government’s powers to spy on its own citizens.

“It’s often centrists, in both parties, who say, ‘You know, we can’t have another 9/11, and we should trust that the government will always do the right thing in terms of monitoring and collecting data,’” Kastenberg said. “I think we should always be concerned about the government’s exercise of power.”

Google never released the names associated with the 3,100 devices because the government withdrew its request after Muhammad Syed’s arrest.

In court documents, Google said Syed never had a device among the thousands it tracked as part of the FBI’s search. He was caught after police released a photo of his car, and tips from the community led to his arrest.

Google is rolling out changes that could make sweeping geofencing orders impossible. The Fourth Amendment’s protection against unreasonable searches is likely to be shaped by the U.S. Supreme Court as privacy expectations evolve in the digital age.