The Colorado Supreme Court ruled on Monday that evidence gleaned from a warrant for Google’s search data could be used in a murder case, sparking concerns the decision may encourage more police to embrace the controversial technique.
(Bloomberg) — The Colorado Supreme Court ruled on Monday that evidence gleaned from a warrant for Google’s search data could be used in a murder case, sparking concerns the decision may encourage more police to embrace the controversial technique.
After a 2020 fire that killed five people in the Denver area, police were scrambling to identify suspects. They asked Alphabet Inc.’s Google to provide information about people who searched for the address of the house that went up in flames, using a novel approach known as a keyword search warrant. After some initial objections, Google shared data that enabled detectives to zero in on five accounts, leading to the arrest of three teens.
Lawyers for one of the defendants, Gavin Seymour, who was found to have Googled the home’s address 14 times in the days before the fire, argued that the keyword warrant constituted an illegal search and that any evidence from it should be suppressed. His motion is the first known challenge to the constitutionality of keyword search warrants. The case is ongoing.
In its 74-page decision, the court found that law enforcement had acted in good faith when it obtained the warrant for the teen’s search history. Still, it stressed that the findings were specific to the facts of the case, and it refrained from weighing in about the use of Google’s search data more broadly.
“Our finding of good faith today neither condones nor condemns all such warrants in the future,” the court wrote. “If dystopian problems emerge, as some fear, the courts stand ready to hear argument regarding how we should rein in law enforcement’s use of rapidly advancing technology.”
The case divided the court. In a fiery dissent, Justice Monica Márquez wrote that the ruling “gives constitutional cover to law enforcement seeking unprecedented access to the private lives of individuals not just in Colorado, but across the globe.”
“After today’s decision, I anticipate that reverse-keyword warrants will swiftly become the investigative tool of first resort,” she wrote in a dissent that was joined by Justice Carlos Samour. “Because, why not? It’s a tantalizingly easy shortcut to generating a list of potential suspects.”
The Denver District Attorney’s office said it was “very pleased” with the ruling and would move forward with its cases. Google said that it was “important” that the court recognized the “significant privacy and First Amendment interests implicated by keyword searches,” and noted that it has “a rigorous process designed to protect the privacy of our users while supporting the important work of law enforcement.”
A representative for Seymour didn’t respond to a request for comment.
The keyword search warrant “is profoundly different from traditional search warrants seeking data belonging to a suspect,” the defense argued in a court filing. “Instead, the process operates in reverse — search everyone first, and identify suspects later.”
In the ruling, the judges grappled with the inherently sensitive nature of people’s Google search histories, which serve as a portal into some of their most private thoughts and quandaries. The judges noted that there are plenty of “innocuous reasons” why people search for addresses. Yet they found the warrant to be sufficiently “particularized,” or tailored to the case at hand, and determined that law enforcement took reasonable steps in using a cutting-edge technique.
There are few known examples of keyword search warrants, but the practice has come under scrutiny in the wake of the US Supreme Court’s decision to overturn the right to abortion. Privacy advocates have warned that keyword search warrants and geofence warrants, in which police ask Google to produce data about users whose devices were present near the scene of a crime, could be used to prosecute women who obtain abortions in states where it’s illegal.
Márquez fretted about that very possibility in her dissent.
“If any address corresponding to the location of a crime is sufficiently ‘narrow’ to meet constitutional muster, one can imagine any number of keywords that would satisfy this standard,” she wrote. “What about a search for the IP addresses of all Google users who searched for ‘mifepristone’ or ‘gender-affirming care’ or ‘Proud Boys’ or ‘AR-15?’ Each of these search queries could be potential evidence of criminal activity under some states’ laws, depending on the circumstances.”
A Bloomberg Businessweek investigation found police across the US were increasingly using warrants to obtain location and search data from Google, even for nonviolent cases — and even for people who had nothing to do with the crime.
Since geofence warrants began coming under judicial scrutiny, some police departments have been more cautious in seeking the orders. Keyword search warrants may follow a similar arc, according to Andrew Crocker, the surveillance litigation director for the nonprofit Electronic Frontier Foundation.
“I do think that courts will chip away at them and will narrow them, and that law enforcement will have to get more conservative in how they use them,” Crocker said.
Nevertheless, Jake Laperruque, deputy director of the security and surveillance project at the Center for Democracy & Technology, a think tank, said it was “frustrating” to see the court pass up an opportunity to give more decisive guidance on the practice to police, legislators and the public.
In the absence of clear rules, he said, “that ambiguity always ends up leaning in the government’s favor.”
(Updates with response from District Attorney and Google)
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