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Is Your Smartphone Your Enemy? Beware of Google Geofence Warrants and Subpoenas

Wednesday, October 21st, 2020

A precedent-setting legal fight is taking place in federal court in Richmond regarding the government subpoenaing smartphone geolocation information from Google to look for cold hits in criminal cases.

This case sheds light on Google’s ability to give “geofence” location information about smartphone users to government prosecutors and civil litigants. Be aware Google could disclose such information about you not only in criminal prosecutions but in a wide variety of civil cases.

The case involves Okello Chatrie, who is charged with robbing a federal credit union in Midlothian. The police found him through a cold hit by means of a warrant issued to Google.

Google tracks location information for all people who have enabled location history and use any Google service on their phones. Almost every Android user and most iPhone users fit this description because of various apps on their phones, such as Google Maps.

Google geolocation information is highly accurate. It can estimate a phone holder’s location within about 20 meters.

Here’s how the police found Chatrie: They obtained a court warrant to Google to identify all smartphones logged into Google accounts that were within 150 meters of the credit union during the one-hour block around the robbery. Google produced anonymized information. After some back and forth, the government later asked Google to identify the people associated with three phones. Google provided the email addresses and names associated with those Google accounts. That led to the arrest of Chatrie.

Chatrie argues this geofence warrant violates the warrant requirement of the Fourth Amendment. He argues a dragnet search warrant can’t be issued to identify individuals for whom the government has no probable cause. He contends a warrant may be issued regarding only a specific person and only when the government has probable cause to believe that person committed a crime.

It appears no court has addressed the constitutionality of such cold-hit geofence warrants in criminal cases. Various organizations have filed “friend of the court” briefs on the issue. A hearing on the motion to suppress is set for November.

While you may not be planning on committing a crime, there are a wide variety of civil cases in which a party might subpoena Google for your smartphone location information. Consider these examples: personal injury (such as auto accidents and drunk drivers), divorce (cheating spouse), child custody, compliance with protective orders, violation of school no-gun zones, employee wage-and-hour disputes (are workers still at work after clocking out?), virtual workplace issues (is the employee at the virtual workplace when claiming to be working), school truancy, workman’s comp, disability, breach of non-compete, trade secret theft, and identifying people who committed property damage or looting during a protest or riot.
Such subpoenas also could be used to find witnesses for such claims. I’m sure I’m failing to imagine many other possible litigation usages.

What should you do about this?

If you own a business involved in civil litigation, talk to your lawyer about whether a geofence subpoena to Google might help your case.

If you are an individual, recognize your smartphone is essentially a personal tracking device that contains intimate details about your life. In theory, you could turn off location tracking on your phone and other ways Google tracks you. In practice, you won’t. Doing so kills many functions that make a smartphone useful.

For example, either you won’t be able to use these apps or their functionality will be greatly inhibited: maps for navigation such as Google Maps or Waze, Facebook, fitness apps with GPS route tracking, photography apps that tag the location of your photographs, ridesharing apps such as Uber and Lyft, food-delivery apps, curbside retail pickup apps (dining, shopping), gas station price shoppers, and find-phone functions.

Many people don’t know how to manipulate the privacy settings in their phones and apps. That’s made worse because technology companies change their privacy policies and reset settings occasionally.

Ultimately, just be aware of the legal vulnerability you create for yourself in both potential criminal and civil matters by carrying a smartphone. If you don’t like that, power off your phone or leave it at home during sensitive times.

Written on October 20, 2020

by John B. Farmer

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