Fourth Amendment Be Damned: Raleigh Police Demanding Google Provide User Data For All People Near Crime Scenes

RALEIGH – The Bill of Rights that is supposed to serve as a guarantor of the self-evident truth of inherent, inalienable rights of individuals is often trampled on these days by all sorts of government agencies. The Fourth Amendment, though, perhaps holds a top spot when it comes to violating its premise and the latest evidence of infringement can be found right here in the Old North State.

In at least four investigations last year – cases of murder, sexual battery and even possible arson at the massive downtown fire in March 2017 – Raleigh police used search warrants to demand Google accounts not of specific suspects, but from any mobile devices that veered too close to the scene of a crime, according to a WRAL News review of court records. These warrants often prevent the technology giant for months from disclosing information about the searches not just to potential suspects, but to any users swept up in the search.

So, police are carrying out unreasonable searches on people who just happened to be in the area at the time the crimes were committed. The areas police are requesting to sweep are not limited to an apartment, or on a private property either. Actually, in one case police requested user data from Google for anyone within a 17-acre area.

“At least 19 search warrants issued by law enforcement in Wake County since 2015 targeted specific Google accounts of known suspects, court documents show.

But the March search warrants in the two homicide cases are after something different.

The demands Raleigh police issued for Google data described a 17-acre area that included both homes and businesses. In the Efobi homicide case, the cordon included dozens of units in the Washington Terrace complex near St. Augustine’s University.

The account IDs aren’t limited to electronics running Android. The warrant includes any device running location-enabled Google apps, according to Raleigh Police Department spokeswoman Laura Hourigan.”

This practice, regardless of securing a warrant, blatantly violates the Fourth Amendment rights of innocent people within a target area. The nature of the data collected can be very revealing and private when it comes to a person’s location and what they’re doing.

And it’s not as if they are unaware of what this tactic represents when it comes to ostensibly protected rights. They are keenly aware, but mistakenly think that merely giving the violations “consideration” on a case-by-case basis absolves them of obvious infringements on the rights of individuals caught up in such sweeps.

“Hourigan said Raleigh police investigators use these search warrants on a case-by-case basis and consider Fourth Amendment protections against unreasonable search and seizure.

“This technique is used in extraordinary circumstances because the department is aware of the privacy issues that the tactic raises,” she said in an email March 9.

[…]

In addition to anonymized numerical identifiers, the warrant calls on Google to release time stamped location coordinates for every device that passed through the area. Detectives wrote that they’d narrow down that list and send it back to the company, demanding “contextual data points with points of travel outside of the geographical area” during an expanded timeframe. Another review would further cull the list, which police would use to request user names, birth dates and other identifying information of the phones’ owners.”

This is an egregious abuse of power by law enforcement. It is exactly the sort of violation that our Founding Fathers sought to protect against when they wrote the Fourth Amendment and prohibited ‘general warrants.’

The Fourth Amendment — which guarantees privacy in our persons, houses, papers and effects — permits the government to invade that privacy only when a judge has signed a warrant that authorizes surveillance, a search or a seizure. Paramount to this process, though, is the fact that judges may only issue warrants when they have found probable cause to believe that the government surveillance or invasion of the target’s privacy will produce evidence of criminal behavior.

All these requirements are in the amendment so as to prevent any court from issuing general warrants. Before the U.S. Constitution, general warrants were issued by British courts. They were not issued based on probable cause of crime but issued based on the government’s wish to invade the privacy of all Americans living in the Colonies to find the more rebellious among them.

Similarly, these data sweeps of a given area by police departments invade the privacy of innocent people for which the police have no probable cause to “search.”

“After five years as a Wake County prosecutor, Raleigh defense attorney Steven Saad said he’s familiar with police demands for Google account data or cell tower records on a named suspect. But these area-based search warrants were new to him.

“This is almost the opposite technique, where they get a search warrant in the hopes of finding somebody later to follow or investigate,” Saad said. “It’s really hard to say that complies with most of the search warrant or probable cause rules that we’ve got around the country.”

[…]

To Stephanie Lacambra, criminal defense staff attorney at the Electronic Frontier Foundation, all of the search warrants she reviewed are “deficient.”

“I don’t think with real scrutiny that they would hold up,” Lacambra said.”

They wouldn’t hold up against honest scrutiny because it is a completely backwards process. Probable cause must be established first, then a suspected individual becomes the target of a warrant to search them or sweep their data. Just because a person is in the radius of a particular area, and also owns a cell phone, is not sufficient to establish probable cause.

These threats to liberty are hardly new, as the Founding Fathers would attest to, but have been in the news in recent years on a national scale that leaves us here in North Carolina feeling perhaps mistakenly feeling more secure due to being removed from major metropolitan areas. FISA courts, NSA spying programs, the PRISM project – these kind of rights violations are often ‘out of sight, out of mind’ for us.

But it’s happening right here, in Raleigh, North Carolina. Are you okay with it?

Read the rest of the investigative piece here.