Supreme Court to Hear Argument on Warrantless Cell Phone Searches

WASHINGTON — The Supreme Court held today that a dragnet search using Google’s location history data is covered by the Fourth Amendment’s protections against unreasonable search and seizures. The decision forcefully rejected the government’s argument that law enforcement can request our location data in the form of a “geofence” search free of any Fourth Amendment limitation. The geofence search at issue in the case is an invasive surveillance technique that enables police to search for and locate unknown numbers of people in a large geographical area by exploiting cell phone location data held by Google. “The Court’s decision provides critical protection against invasive and overbroad government searches of our personal information,” said Brett Max Kaufman, senior counsel with ACLU’s Center for Democracy. “Although Google already changed its system so it no longer has access to the same data the government had been seeking through geofence warrants, similar kinds of reverse searches of sensitive data held by other companies will continue to be a threat to privacy. Law enforcement and courts are on notice that new technology does not open up surveillance loopholes, and strict adherence to the Fourth Amendment’s protections is required.” In the five-justice majority opinion, Supreme Court Justice Elena Kagan compared the geofence search of Google location history to the cell site location information (CSLI) at issue in the landmark 2018 decision in Carpenter v. United States, an ACLU case. Justice Kagan wrote, “Location History implicates personal privacy interests even more than CSLI, because Location History is more the cell-phone user’s own. Most cell-phone users have no awareness of CSLI records, and would never try to retrieve them; by contrast, Google users regularly employ Location History as a personal journal. In that way, Location History resembles other private materials—e.g., emails, documents, photographs, or calendars—that even if stored on Google’s servers, a user reasonably views as his own and expects to be shielded from the “inquisitive eyes” of the government.” Separately, Justice Gorsuch also rejected the government’s argument, concluding that a geofence search violates an individual’s right to personal property. Three justices dissented. Geofence warrants direct Google or other companies to hand over users’ location data from cell phones and other mobile devices the company estimates were in a certain area during a certain time frame — regardless of whether police demonstrate that they had reason to believe the people who own these devices were involved in any crime. A high-level analysis conducted by ACLU of Northern California of the types of places captured by law enforcement in geofence warrants across San Francisco, for instance, revealed a troubling pattern of broad searches that swept in many people with no connection to the crime, including at their homes and other constitutionally-protected spaces. The American Civil Liberties Union, the ACLU of Virginia, Electronic Frontier Foundation, and the Center on Privacy & Technology at Georgetown Law filed an amicus brief in this case, arguing that these geofence searches implicate core Fourth Amendment concerns, and that police should not be able to conduct searches using geofence warrants because they sweep in people as to whom the government has no reason to believe they were engaged in criminal conduct. As the groups explained, a search that ensnares any number of innocent people just because they are nearby when a crime occurs is an unconstitutional fishing expedition that violates the Constitution. “The Court’s decision confirms that law enforcement does not have a blank check to use new technology to conduct warrantless surveillance of people’s movements,” said Eden Heilman, legal director of the ACLU of Virginia. “We do not lose our right to privacy simply because we use a cellphone." In its decision today, the Court held that a government request for any amount of cell phone location history is a search under the Fourth Amendment and thus requires a warrant. The Court left it to the lower courts, on remand, to assess whether the warrant that the government obtained in this case complies with Fourth Amendment requirements. The ACLU’s amicus brief in United States v. Chatrie is part of the Joan and Irwin Jacobs Supreme Court docket.

The ACLU provides a range of tactics for communities to stop or limit the use of Flock’s ALPR mass surveillance technology

What are the implications of having for-profit companies at the heart of American police departments?

WASHINGTON – The American Civil Liberties Union (ACLU) released a new report today about the increasingly central role that surveillance and tech companies are playing in US police departments and how that threatens to give private companies unfettered access to Americans’ sensitive data. The report examines the major companies involved, the potential ways this information could be abused or exploited, and the history of close ties between corporations and police. Every day, police across the country use body cameras, drones, dash cams, and fixed surveillance cameras gathering hours upon hours of footage of people going about their daily lives. And now, some of the biggest surveillance tech companies, including Axon, Flock, and Motorola, want to gather, analyze, and control this data by providing “operating systems” for police departments that, like operating systems on computers and phones, can see and control all the data in the system. This will threaten the civil rights and civil liberties of everyone who interacts with one of these cameras — knowingly or not. Part of this trend is the movement towards police cloud services, which facilitates the consolidation of data from thousands of U.S. police departments within corporate servers and gives these private actors live remote control over the surveillance tech even after it’s deployed in communities. Or as Axon puts it on their website, “integrating hardware devices and cloud software solutions” in “the Axon ecosystem” and connecting “every officer, responder and agency.” “Putting private, for-profit companies at the heart of modern police departments — what could go wrong? The answer is: plenty, and that’s what this paper outlines” said Jay Stanley, senior policy analyst with the ACLU’s Speech, Privacy and Technology Project.“Policymakers, the public, and the policing profession need to grapple with the implications of this corporatization of police departments — especially for people’s civil rights and liberties — and address it before this becomes normalized and leads to new forms of abuse we’ve never seen before.” These new corporate efforts to expand their work with police are especially worrying given how quickly surveillance technology is proliferating across the country — and how few places have strong guardrails or oversight in place. As the report details, there are many ways providers could exploit their insider access to this data, including using it to go after critics, journalists, labor unions, regulators, and competitors, or to try and fend off investigations into their products. The lack of safeguards also means that company employees could use this data to target exes, manipulate prediction markets, or even alter evidence. Unfortunately, it’s not just the companies selling these products that the public needs to be worried about. According to the report, there is another set of players that raise many of the same concerns about private companies’ access to police data and the corporate role in policing: cloud computing platforms like Amazon Web Services (AWS), Microsoft Azure, and Google Cloud Platform, which currently also have access to the growing mountain of data generated by surveillance-based policing. The report lays out six recommendations that policymakers could implement to protect their constituents. Recommendations include contract requirements restricting private vendors’ access to law enforcement data, mandating the use of local rather than cloud services, and passing both the Fourth Amendment Is Not For Sale Act and Community Control Over Police Surveillance (CCOPS) laws.