I just got a case that let's say disturbed me a bit. Maybe more than a bit. This is a federal murder case that touches on a privacy issue. Privacy issues are sensitive as people don't want the bad guy free based on a "technicality". But maintaining a balance of privacy while also allowing law enforcement to do their job is a tough highwire to walk sometimes.
This issue involves law enforcement knowing where and when a crime occurred. They then obtain cell phone data called "tower dumps" from the cell phone operators for the towers in that area. The data includes information on all phones in the area within the specified time window.
Up until late 2023 Google was providing this type of phone location data to law enforcement called geofence data. This was a 3 step process in which law enforcement would provide a geographic area and a time range to Google. The following is a fairly good description of the process from the National Association of Defense Lawyers (NACDL).
"The geofence process involves up to three steps, which may be completed through a single or multiple warrants or through a combination of warrants and other forms of process.
Step One: The government first seeks anonymized numerical identifiers and time-stamped location coordinates for every device that passed through an area in a specified window of time.
Step Two: The government reviews the list and culls it using other investigative techniques. Sometimes the government requests more information about particular accounts from the company. That request may be made by a private letter to the company for more location history for a longer period of time with no geographic limitations.
Step Three: The government further narrows the list and requests identifying information (e.g., usernames, birth dates, and other identifying information of the phones’ owners) from the company for the culled list of users through the initial warrant or an additional warrant, court order, or subpoena."
At least Google had a process to try to filter out unknowing, honest citizens that happened to be in the area. They were sensitive to the privacy rights while attempting to assist law enforcement. They tried to straddle the wire between the two but ultimately they decided it wasn't in their best interest as a company to provide the geofence data and/or they removed it based on the following.
In a landmark case Carpenter vs United States "...individuals have a reasonable expectation of privacy in the location data implicated by geofence warrants." The case deemed geofence warrants unconstitutional so they were out but the government found another way. It's called the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d). The logic is that since it is a small area and time frame that it does not require a warrant like historical cell phone records, CDR's and PCMD's.
Here is a section of the request.
This was used in my current case which is similar to Google geofence but more extreme. In this case federal law enforcement is requesting call records directly from the wireless network operator. This data includes phone numbers, locations, phone calls to and from with numbers, texts to and from with numbers (not message content), cell tower antenna direction and cell tower locations on all phones within a specified geographic area within a specified time range.
There aren't multiple requests to weed out unknowing honest people that just happen to be in the area. They get all the information on all the phones that made calls or texts in that area. They have just created a list of suspects and if you are on it you are a suspect.
Defense filed a motion to exclude this data based on the 4th Amendment but it was denied by the judge who said a warrant wasn't required because it fell under the 2703 act.
This is an end around the warrant process. By allowing the data to be obtained without a warrant they sidestepped the decision in the Carpenter case that disallows geofence warrants. But the request for the "geofence" attempts to achieve the same result as the geofence warrant. So it is a matter of semantics but the action is the same.
Some judges have denied these 2703 requests but most are not. So until this hopefully gets corrected this data will be available to law enforcement without a search warrant.
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