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Why so-called "geofence" warrants are a growing concern

Modern and constantly evolving technology is increasingly becoming a factor in criminal law probes and outcomes.

Take Google, for example, the Internet search engine of unparalleled reach. A recent article chronicling Google's sheer use dimensions notes its almost incomprehensive presence in daily life. Scores of billions of Google searches occur every day. Google's huge data bank routinely collects and saves the personal information of people all across the globe.

Including location history, which is the subject matter discussed in the above-cited piece spotlighting so-called “geofence” warrants.

That begs a bit of description, as follows. A traditional warrant sought in a criminal matter contains particularized information concerning an alleged suspect. Conversely, notes the aforementioned overview, a geofence warrant directed to Google requires the company “to trawl its massive library of location data … to identify people who were in an area when a crime was committed.”

That it is a sheer departure from the norm, which requires a showing of probable cause (a warrant-linked presentation of facts to support the reasonable likelihood that an individual engaged in or sought to commit a crime). Authorities seeking a Google geofence warrant instead seek far more generalized information from secured data. A typical example is a request for the identities of every person who was within a given area where one presently unknown suspect broke a law.

Critics of geofence warrants are many, diverse and growing. They range from civil rights groups and privacy advocates to defense attorneys and additional parties. Collectively, opponents stress the overbroad nature of geofence warrants and their constitutional overreach.

One commentator says that a geofence warrant allows for “a dragnet search of sensitive data of lots of people who will have absolutely nothing to do with a crime under investigation.”

Truly, that is concerning. The law concerning such warrants is currently unsettled. We will keep readers timely apprised of any material developments that emerge.

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