The Hidden Dangers of Everyday Activities in the Digital Age
In today’s digital age, simply going about your daily activities could inadvertently make you a target for government surveillance. This could even lead to legal action. We periodically remind our American readers that by simply going about their daily lives, they are likely committing multiple crimes. As we pointed out last month, for instance, you could be imprisoned for walking your dog on federal property without a leash or with too long a leash. Indeed, as attorney Harvey Silvergate has pointed out, the average American likely commits several felonies each day, often without knowing it.
At the same time, the surveillance infrastructure created to detect and prosecute these crimes has greatly expanded. Consider the so-called “geofence warrant,” in which a law enforcement agency is granted access by a court to location data from every mobile device connected to a cellphone network or to the internet in a particular area within a specific time range. This type of warrant essentially operates in reverse, casting a wide net that ensnares hundreds or even thousands of innocent people in its surveillance dragnet.
What Is a Geofence Warrant?
A geofence warrant is highly sought after by law enforcement agencies. It allows them to gather data from every device in a specific area at a specific time, rather than targeting a specific individual. Google likely receives more of these warrants than any other company since its Android phones are the most popular type of cellphone. Even iPhones typically use apps from Google, such as Gmail or Google Calendar. According to reports, Google has processed more than 75 times as many geofence warrants in recent years compared to just four years ago.
If Google receives a geofence warrant and determines your data is relevant to law enforcement, they will notify you. You’ll receive an email informing you that law enforcement is requesting your data. You’ll only have a few days to go to court to challenge it. Keep in mind, however, that if Uncle Sam alleges “national security” is at stake, no warrant—or notification—is necessary.
The Rise of Surveillance Capitalism
Thanks to the “surveillance capitalism” phenomenon, businesses are cashing in on geofence warrants. One such company, Hawk Analytics, offers a webinar titled ‘Everything Google: A Guide to Geofence Warrants.’ This webinar, aimed exclusively at law enforcement, highlights the growing demand for these warrants. It’s a “can’t miss webinar for today’s investigator,” although it’s offered to law enforcement only.
Keyword Warrants: A New Threat to Privacy
If there’s any good news about geofence warrants, it’s that you’re less likely to be caught up in one if you’re at home. However, this changes if a crime is alleged to have occurred nearby. But there’s another type of warrant in reverse that does affect you if you use the Google search engine (and who doesn’t?): the “keyword warrant.”
A keyword warrant is even more invasive than a geofence warrant. This type of warrant targets every person who used a search engine like Google to search for a specific word or phrase. In practice, this means anyone in the entire world who searches for a particular term is a potential suspect. Keep that in mind next time you search for a term that might later be deemed suspicious. Some searches that might get attention from authorities are obvious, like ‘pipe bomb’ or ‘how to poison someone.’ Others, such as searching for someone’s address, are less so.
Real-Life Cases: The Use of Keyword Warrants
We first learned of keyword warrants during the racketeering trial of singer R. Kelly. In this case, police sought to prove that one of Kelly’s associates was engaged in arson and witness intimidation. On June 15, 2020, a federal magistrate authorized a keyword warrant. It targeted Google users who had searched for a particular address close to the time of a suspicious fire.
As with a geofence warrant, the vast majority of those caught up in a keyword warrant will be innocent of any wrongdoing. However, the judges who approve such warrants often have no idea how many individuals will be caught up in the search and subjected to further investigation.
Constitutional Concerns: A Violation of the Fourth Amendment?
Both geofence and keyword warrants are, in our view, blatantly unconstitutional. They fail to meet the Fourth Amendment’s “particularity” requirement. A court order compelling Google to disclose a suspected criminal’s location data and search history must be based on probable cause that the person committed a crime. This makes it a narrow and targeted search that aligns with the particularity rule. But, it’s quite another matter to treat each Android phone owner in a geographical area as a criminal suspect. The same applies to any Google user anywhere in the world who searches for a specific phrase.
That said, we have little confidence that the courts will restrict these types of warrants. There have been isolated victories in exceptional cases. But the sheer volume of warrants makes it unlikely that those targeted will have the time or resources to challenge them effectively.
How to Protect Yourself: Practical Tips
For geofence warrants, one simple, albeit draconian solution, is to throw away your smartphone. Replace it with a burner—a cheap mobile phone and prepaid voice and internet service purchased with cash. Follow this link to learn where to buy one and set it up.
Or you can take steps to limit your digital footprint:
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Turn off “find my phone” services, Wi-Fi, and Bluetooth on your device.
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Disable location sharing on your smartphone, though this will limit the functionality of many apps.
For keyword warrants, consider using search engines that don’t store search history, such as DuckDuckGo or EpicSearch. But if you occasionally need to use Google, protect yourself by using a Virtual Private Network (VPN).
In our case, we use a VPN for all our internet activity, not just Google searches. A VPN encrypts your entire data stream, making it impossible for Google (or any other search engine) to comply with a keyword warrant. It also protects you from surveillance by your internet service provider. Here at The Nestmann Group, we recommend ExpressVPN.
Now is the time to secure your digital privacy. Big Brother isn’t going to protect your privacy for you—you need to take matters into your own hands.
