WASHINGTON, DC — If you carried a cell phone past the wrong street corner at the wrong moment, police could already have your movements, your digital trail, and your identity—without ever suspecting you of a crime. That is the reality of geofence warrants, a powerful surveillance tool whose use by police is now being challenged before the U.S. Supreme Court.
Warning that geofence warrants constitute digital fishing expeditions that force millions of innocent Americans to prove they’re not suspects, The Rutherford Institute is urging the Supreme Court to hold that geofence warrants are unconstitutional general warrants—an abuse of power the Founders sought to prohibit through the Fourth Amendment. Historically, general warrants gave government agents sweeping authority to search wherever they pleased, without probable cause or particularized suspicion limited to particular individuals, locations, or materials. As Institute attorneys warn in an amicus brief in Wells v. Texas, geofence warrants revive that same abuse in digital form, allowing the government to rummage through the location histories of untold numbers of innocent people in the hope that someone, somewhere, might be connected to a crime.
“Geofence warrants turn the Fourth Amendment on its head. If the government can track where we go, who we associate with, and when we were present—without probable cause—then no one’s movements are truly private,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This case is about whether the Constitution still places meaningful limits on government surveillance in the digital age.”
When police have no suspect but assume—correctly—that nearly everyone carries a cell phone, geofence warrants allow them to compel technology companies to turn over location data for every device within a defined area and time period, regardless of suspicion. Police can then narrow that data through successive requests—tracking movements, reviewing account information, and ultimately identifying individuals—until a suspect emerges. Geofence warrants have been used by law enforcement since at least 2016.
In Wells v. Texas, Texas police obtained a geofence warrant directing Google to identify devices located near the scene of a crime during a specific time window. Through successive data requests, police ultimately identified a cell phone associated with the defendant as being in the area, leading to a conviction. In a divided decision, the Texas Court of Criminal Appeals upheld the geofence warrant as constitutional. Two judges went further, asserting that no warrant was required at all because cell phone users lack a reasonable expectation of privacy in information they “voluntarily” share with third parties such as Google. That reasoning directly conflicts with a ruling in another case from the Fifth Circuit Court of Appeals, which held that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.
In asking the U.S. Supreme Court to review the case, The Rutherford Institute warns that geofence warrants pose a grave and growing threat to the privacy of all Americans. By normalizing suspicionless surveillance, these warrants establish a dangerous precedent in which vast numbers of innocent people must surrender their privacy simply for existing in public space with a smartphone in their pocket.
Ethan H. Townsend and Maura R. Cremin of McDermott Will & Schulte LLP advanced the arguments in the amicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
Source: https://tinyurl.com/8hhk7yvp
John W. Whitehead, Constitutional Attorney 