Geofence warrants to be tested in Virginia bank robbery case
RICHMOND, Va. — It was a terrifying bank robbery: Demanding cash in a handwritten note, a man waved a gun, threatened to kill a teller’s family, ordered employees and customers onto the floor and escaped with
$195,000. Surveillance video gave authorities a lead, showing a man holding a cellphone outside the Call Federal Credit Union in Midlothian, Virginia, on May
20, 2019. So like a growing number of law enforcement agencies, they got a court-approved “geofence” search warrant, seeking the location history of any devices in the area at the time.
Google is served with the vast majority of these warrants because it stores information from millions of devices in a massive database known as Sensorvault. If your Android phone or iPhone has Location History enabled, this is where your data is tracked and stored.
A Google spokesman declined to say how many geofence warrants the company has received, but Google’s legal brief in the bank robbery says requests jumped 1,500% from
2017 to 2018, and another 500% last year.
Police credit these warrants with helping identify suspects in a fatal shooting in North Carolina, home invasions in Minnesota and a murder in Georgia, among other crimes. Defense attorneys say they unconstitutionally ensnare innocent people and violate the privacy of anyone whose cellphone happens to be in the vicinity.
Now geofence warrants are getting their first significant court challenge. Lawyers for Okello Chatrie want a federal judge in Richmond to suppress the warrant that led to his arrest for the bank heist.
Similar court challenges are being waged against facial-recognition software, persistent aerial surveillance and Stingray cellphone trackers, among other technology, and civil rights advocates are even more concerned now that people are protesting against racial injustice.
“If you are someone who went out on the streets to express your rage, your sadness and your hope that there is a better way to do policing and are then subject to a warrant, I think that would go against everything we are telling people they have the right to do,” said New York state Sen. Zellnor Myrie, a lead sponsor of a bill to ban geofence warrants.
The legislation was prompted in part by a New York Times report that prosecutors sought Google’s cell phone records around the spot where the Proud Boys, a far-right group, brawled with anti-fascist protesters in 2018. Several Proud Boys were later convicted of assault.
In Chatrie’s case, bank cameras showed the robber came and went from an area where a church worker saw a suspicious person in a blue Buick. Chatrie’s Location History matched these movements. Prosecutors say Chatrie confessed after officers found a gun and nearly $100,000 in cash, including bills wrapped in bands signed by the bank teller.
Chatrie’s lawyers say all the evidence should be suppressed because it flowed from the geofence warrant in violation of the 4th Amendment’s protection against unreasonable searches.
“It is the digital equivalent of searching every home in the neighborhood of a reported burglary, or searching the bags of every person walking along Broadway because of a theft in Times Square,” Chatrie’s lawyers wrote.
Typically, Google initially turns over anonymized data; police then seek identifying information on a smaller group of suspect devices.
“We vigorously protect the privacy of our users while supporting the important work of law enforcement,” said Richard Salgado, Google’s director of law enforcement and information security.
Privacy advocates say such broad warrants inherently sweep up innocent people.
Zachary McCoy, a Florida restaurant worker, had the wherewithal to fight back when Google emailed saying Gainesville
police were seeking information related to his Google account. Plugging the case number into a police website, he saw a 97-year-old woman’s home had been burglarized.
“I was kind of terrified that for some reason I was going to prison even though I hadn’t actually committed a crime,” he said.
McCoy had to enable Google’s location services to track his bike rides on RunKeeper. The exercise-tracking app showed him near the woman’s house three times around the time of the burglary as he did laps around the neighborhood.
McCoy borrowed $7,000 from his parents to hire a lawyer, who persuaded police to withdraw the warrant.
Geofence data ensnared a man who seemed to be at the site of a 2018 killing in Avondale, Arizona. Jorge Molina spent six days in jail before his lawyer provided police with evidence exonerating him. His mother’s ex-boyfriend was later arrested in the killing. It turns out Molina had given the man his old cellphone, which was still logged in to his Google account.
“Police are basically treating this like it’s DNA or fingerprint evidence, but it’s not,” said Jack Litwak, Molina’s attorney. “Jorge was nowhere near there and then he was accused of the worst crime you can be accused of committing.”
Prosecutors say they tailor geofence warrants as narrowly as possible.
“There is a process by which the 4th Amendment is followed and where people’s privacy concerns and considerations are at least weighed against the public safety interest and the strong governmental investigation interest,” said Lorrin Freeman, the district attorney in Wake County, North Carolina.
Prosecutors consider Google “a witness to the robbery” in Chatrie’s case, and argue he had no reasonable expectation of privacy since he voluntarily opted in to Google’s Location History.
Privacy advocates say many cellphone users don’t understand how much their movements are being tracked, nor how to opt out. A 2018 Associated Press investigation found that many Google applications store data even when owners used a privacy setting it said would prevent that.
Google later added new privacy controls that allow users to put an expiration date on their data and recently said it will automatically delete location history for new users after 18 months.
“The question of how we would want to govern this novel and extremely comprehensive capability is really something that’s up in the air,” said Jennifer Stisa Granick, surveillance and cybersecurity counsel for the American Civil Liberties Union. “We just now as a society are just starting to deal with technology like this.”