Bad precedent to set for warrant-less searches going forward.
Court ruling:
I feel like this is pretty damning for Google and another example of Google as the enemy of your civil liberties:
“In the case before us, Google went beyond subtle indicators,” the opinion says. “Google expressly informed its users that one should not expect any privacy when using its services.”
Google is willing to turn over your information at request without a warrant.
This is a good reminder to consider your own threat model, what software and web services that you use.
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For those who have been keeping track of tech and their behavior, this is not news or at least not surprising. Google does many terrible things. Never use Google products if you can avoid it.
I think this makes legal sense and isn’t really new - the record of your Google searches isn’t yours, it’s Googles. If Google wants to turn it over without a warrant, and their privacy policy says they can, they can. It might be noteworthy if it wasn’t expected that Google would be willing to do this, but is anyone surprised by it? Or if Google asked for a warrant and police said they didn’t need one and forced it to be handed over, but that’s not what happened.
What the heck.
I hope this can be appealed up to the U.S. Supreme Court.
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The risk is this becoming a federal precedent.
Disagree. The court ruling relies heavily on the third party doctrine, but the third party doctrine has been historically challenged and evolved over time. There was once an unfortunate time before Carpenter v. United States (which all privacy advocates should be aware of) where cell phone location data did not require warrants. I see no reason to argue that search history cannot follow suit.
Additionally, what is also being set precedent is reverse search warrants, specifically reverse keyword search warrants. These kinds of warrants are still highly legally contested. Some argue they should be allowed, others argue otherwise. Lots of things here are new.
I dunno. This seems normal to me. When you interact with Google, that data becomes their property. Google services are not magically “free”. What they do with that property is their business. This precedent has already been set by every social media company ever.
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This seems to be a very lay conception of property. The context of the discussion is highly legal and should therefore require legal insight. Firstly, as said above, reverse search warrants are still legally contested, as is a lot of things in the legal world.
The NACDL is an organization composed of people trained on criminal defense and other legal matters, and they provide more nuance to this discussion. They, for example, have a primer on how geofence warrants (a type of reverse search warrant) work and how to challenge them. OP is not about obtaining evidence from corporations without a warrant but instead about obtaining them with a reverse search warrant.
Here are some of motions to suppress geofence warrants (and their outcomes where applicable):
- Redacted motion
- This is a redacted motion to suppress that serves as a template for attorneys, so it’s unknown whether this was granted or denied.
- But it is a good foundation for challenging geofence warrants and a good reading to learn more about the kinds of arguments made for and against geofence warrants.
- Motion to Quash and Suppress Evidence under Penal Code §§ 1538.5 and 1546
- This motion was granted.
- Defendant Okello Chatrie’s Motion to Suppress Evidence Obtained from a “Geofence” General Warrant
- This motion was denied. I don’t have the source material for it, but the Fourth Circuit affirmed that denial, citing a lack of expectation of privacy. I disagree, and many others do too.
- Cell phone location data, under Carpenter v. United States, was held to be something reasonably expected to be private. There is no practical distinction for the lay peson between cell phone location data and Google location data because it’s all just personal data about one’s location, so Google location data should follow the precedent set by Carpenter.
As for keyword warrants (the type of reserve search warrant in OP), here’s one:
- Motion to Suppress Evidence from a Keyword Warrant & Request for a Veracity Hearing
- I believe this motion was denied. I do not have that file for that denial, but here is the petition to appeal that denial and the response to that petition, which affirms the denial, if you want to read it.
The legal world is always evolving. The arguments being used against these petitions and appeals of Fourth Amendment violations are also being used to justify warrantless government surveillance. The ACLU very recently obtained an internal document from ICE about their legal justification for warrantless surveillance,[1] which 404 Media gained a copy of and uploaded. The relevant portion of their legal document states:
Under longstanding Supreme Court precedent, an individual has no reasonable expectation of privacy under the Fourth Amendment in information voluntarily disclosed to third parties.
This is high stakes for all people, not just people under criminal investigation. And even then, reverse search warrants are high stakes for all people already anyway. Rather than investigate singular persons of interest, reverse search warrants create a class or category of persons of interest to investigate.
Precedents like these give way to government surveillance. I will never understand how anyone will argue that using internet or digital tools and services removes any expectation of privacy simply because it is circularly supported by the precedent that it follows. Saying that this is normal or legal or constitutional simply because there’s precedent for it or that it’s how the system works is circular. We literally decide what is set as precedent. We can argue why it is unconstitutional, even though there is precedent which says otherwise. That’s in fact the whole point of the legal system.
The Fourth Amendment was created in a pre-internet world. If we were drafting up a modern day Fourth Amendment, it’s likely us privacy advocates would understand how exactly phone location data and internet searches are personal and should be private to the individual (because that’s precisely what we talk about), even if they are not descriptively private in the real world today.
Discussion about this isn’t about whether or not these searches are legal. It’s about whether or not they should be. I think they should not be legal, plain and simple.
In arguing about the facts (about what is) in a discussion about what should be, you’ve implied a value judgement which says that you think Google should be able to do this. But is this actually a judgement you hold? You might be mixing up the two. If it is a judgement you hold, you should make a prescriptive argument, not do a descriptive analysis.
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