A recent deposition (pdf) by a defendant from Jan. 6 revealed that Google provided the FBI with location data for 5,723 cellphones seen near the Capitol that day.
Filed on Oct. 17 on behalf of defendant David Rhine, the motion asked the court to suppress Google’s location history, as well as evidence submitted to the government, obtained through a general warrant that violates the Fourth Amendment, which prohibits abusive searches and seizures .
“The ‘geofencing warrant’ searched and entered the data into the ‘location history’ from google belongs to thousands of people”specifies the query. “Mr. Rhine has reviewed the Fourth Amendment regarding his Location History data, and the scope of the mandate was exaggerated and too general considering the Fourth Amendment. »
A geofencing warrant allows law enforcement to search a digital location database to locate mobile devices and their owners in a specific area.
According to the record, the government has “restricted” Google searched for all accounts whose location data was within a 1.5-acre radius of the Capitol between 14.00 and 18.30 on 6 January 2021.
While the government’s request for the geofencing order and the order itself remain sealed, Rhine’s attorneys noted that the request was primarily based on an assumption stated in these terms: “Due to the pandemic, security around the Capitol in preparation for the inauguration, security around the Capitol in anticipation of protests prior to certification, and the limited scope of the geographic area covered by this mandate, it is not. There will likely be no tourists or passers-by to be found in all this data. »
Overall, the government considered anyone within a 1.5-acre radius of the Capitol on January 6 to potentially be there to engage in criminal activity.
Noting that their client’s mere presence near the Capitol was not necessarily evidence of a crime, Rhine’s lawyers continued: “The size and very vague characterization of the items to be seized prompted a blanket search of the private records – Google account – of anyone who might have been in or near the geolocated perimeter. »
According to Wired, Google receives around 10,000 geofencing orders a year in the US.
In a statement to Wired, a Google spokesperson defended its handling of those warrants: “We have a rigorous procedure (…) that aims to protect the privacy of our users while supporting the important work of law enforcement. When Google receives legal requests, we carefully review them for legal validity and constitutional concerns, including overbreadth, consistent with applicable case law. If a request asks for too much information, we try to reduce it. We regularly reject requests that are too general, including geofencing requests that are too general, and in some cases we objection to production of any information”.
Nevertheless, Rhine’s lawyers argued that the Jan. 6 geofencing order was too broad.
“From the start, the government hired Google to search for millions of unknown accounts in a massive fishing expedition”they noted in the deposition. “Unlike scenarios where a company must search defined records to identify sensitive data, the search here did not identify specific users or accounts to search for. Instead, the ruling forced Google to act as an auxiliary inspector, searching accounts for “several tens of thousands” of users to create a lead for the government. »
Adding that geofencing mandates involve ” almost always “ an intrusion into constitutionally protected areas, Rhine’s lawyers asked the court to delete the data obtained through the warrant.
On November 30, the government responded (pdf) to Rhine’s lawyers’ proposal, saying it should be rejected because the geofencing order was “just enough”had been adapted “to the greatest extent possible” and was supported by valid case.
Rhine was charged with entering and remaining in a restricted building or area, public disturbance in a restricted building or area, public disturbance in a capital building and “demonstration or strike” in a Capitol building.
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