Google gave the feds the personal data of nearly 1,500 individuals based on cell phone location data indicating their presence near the Capitol complex on Jan. 6, 2021. The Department of Justice sought substantially more information, as well, according to a recent court filing, including data on Jan. 6 cell phone users wholly outsidethe Capitol. These facts, coupled with Google’s apparent disregard for the privacy rights of its customers, expose the potential for the government and Big Tech to collaboratively target political enemies.
In response to the riot that erupted inside the Capitol on Jan. 6, following a rally at the National Mall and a peaceful protest outside the Capitol, the Department of Justice launched a massive investigation seeking to identify and prosecute the individuals who committed crimes that day. Just a week after the Jan. 6 riot, “the government sought and was granted a ‘geofence’ warrant for data held by Google.”
A “geofence” warrant compels tech companies, such as Google, to provide the identity of individuals whose cell phones were physically located within a defined geographical area during a specific time period. The Jan. 6 warrant served on Google compelled the tech giant to search all accounts to identify devices that appeared physically present on Jan. 6 from 2:00 p.m. until 6:30 p.m. in the “target location.” The “target location” or the “geofence” covered by the warrant included the Capitol building and the area immediately surrounding it, which together covered about four acres of land.
In total, Google identified 5,723 “unique devices” that “were or could have been within the geofence during the relevant time period.” Of the 5,723 devices, the federal government then obtained a warrant forcing Google to provide “the phone number, google account, or other identifying information” for more than 1,500 cell phones that appeared located completely in the geofence area or in cases where the user had later deleted the location data.
How extensively the government used the data obtained from Google in investigating the riot is unclear, but the records eventually led the Department of Justice to charge David Rhine with four federal crimes: entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; disorderly conduct in a Capitol building; and parading, demonstrating, or picketing in a Capitol building.
Rhine pleaded not guilty, and his public defender filed a motion to suppress the data obtained from Google connecting Rhine’s cell phone location to the Capitol, as well as any evidence the federal government obtained as a result of identifying Rhine through the geofence warrant. In his motion to suppress, Rhine argued that the geofence warrant was overbroad and lacking in particularity in violation of the Fourth Amendment.
Whether a geofence data search constitutes a “search” within the meaning of the Fourth Amendment remains hotly debated, and to date, only a few lower courts have addressed the issue. The handful of courts that have considered the issue have concluded the Fourth Amendment applies to requests for geofence data and thus the government must establish “probable cause” to obtain the data. And in upholding the geofence warrants in those cases, the courts have stressed the narrowness of the scope of the warrants at issue.
In contrast, here the government obtained the personal data of more than 1,500 people whose cell phones appeared to have been located within a four-acre area. This case will thus likely lead to significant developments in Fourth Amendment jurisprudence related to geofence searches.
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