Geofencing warrants aren’t meeting the burden of probable cause and bills for kids’ safety online threaten to make bad situations worse.

April 18, 2022

By: Bobby Casey, Managing Director GWP

Does it ever feel like the government starts a million fires to distract you from a major heist? People are rightly concerned about the fires, but meanwhile the real job is going down.

It’s hard to tell which is which because it’s not like the distractions aren’t real events happening. They are! With real consequences and implications! But I’m starting to think that the heists are buried in the low coverage stories.

If I see a bunch of media outlets covering something, I see that as someone pulled the fire alarm lever. But when I see smaller publishers talk about stuff the larger ones haven’t, my “Spidey Senses” go off and I wonder if that isn’t the real endgame.

Two little stories I found that got me wondering was “Geofence Warrants” and “Kids’ Online Safety Act”.

Geofencing Warrants

Many folks are relying on the “Privacy Terms” of large providers to secure their data. Google, Microsoft, and Apple are among the major players in this space.

Before we get into the geofencing aspect, it’s important to understand just how massive the big three are, and what they are capable of doing.

There is a media outlet called “Project Veritas“. It’s a non-profit media organization that specializes in undercover investigative journalism. They broke a major story on ACORN in 2009:

At the suggestion of Hannah Giles, she and [James] O’Keefe went into offices of ACORN, the Association of Community Organizations for Reform Now, purporting to be a pimp with his prostitute. Using camera hidden in O’Keefe’s necktie, they recorded the staffers in ACORN offices around the country explain to them how to lie on tax and welfare forms, bury cash in a tin box underground and how to declare the underage Salvadoran females O’Keefe claimed to be trafficking into the U.S. to become prostitutes as his dependents.

Fast forward to the fall of 2021, when the FBI raids his home in search of Ashley Biden’s diary. James O’Keefe, founder of Project Veritas, came into possession of the diary, and because it apparently “crossed state lines” to get to him, the FBI got involved.

Not only did they raid his house and take nearly everything he had, it was later discovered that they got Google, Microsoft, and Apple to turn over all their files and data on O’Keefe and his staff.

These were “secret” warrants with gag orders on them, by the way. So not only was the staff of Project Veritas unaware of this harvesting of their data, the three corporations were not allowed to say anything about it.

Microsoft was the only one to speak up, which ultimately brought the other two forward.

Knowing that the FBI can do this, and it took someone with an ounce of integrity from Microsoft to expose it, let’s look at the geofencing situation.

Here’s the question brought before a district court was, as reported by Reason: Can the cops use Google location data to find anyone in an area at a given time?

What brought this on was a 2019 bank robbery in Virginia. The police sought a “geofence warrant” to see who was in that vacinity when the crime was committed.

The warrant didn’t hold up… this time. It wasn’t an absolute ruling against geofence warrants. Rather in this particular case, the terms of the warrant were too vague:

U.S. District Judge Hannah Lauck has now held that the search—which relied on cellphone data location histories—violated the Fourth Amendment’s protection against unreasonable searches, since it collected information on myriad people without having any evidence of their involvement in the crime. “The warrant simply did not include any facts to establish probable cause to collect such broad and intrusive data from each of these individuals,” wrote Lauck in her decision.

The judge stressed that she was ruling on this particular situation—not on geofence warrants broadly—and there could be a situation in which their use was constitutional.

Imagine being one of hundreds of people in a given location when a crime goes down and being a “person of interest” if not a suspect because your phone was in the vicinity at the time the crime was committed. That hardly rises to the level of “probable cause”.

Clearly this is not an official and final win on the matter. This ruling could go a long way in curbing future geofence warrants, and potentially reduce their numbers. This is the first ruling of its kind on the matter of geofence warrants, so to date, these warrants have been unmitigated in their use and application.

Google provided some interesting data that shows 96% of these warrants come from the state level, while only 4% at the federal level. And the biggest culprits are California, Texas, and Florida.

Moreover, the data they submitted shows 25% of the US warrants they receive are geofence warrants:

Google’s receipt of such warrants rose 1,500 percent between 2017 and 2018 and 500 percent between 2018 and 2019.

That’s insane.

The fact that so little attention is given to the fact that these kinds of warrants are being issued, signed off by some judge, and executed is terrible.

Kids’ Online Safety Act

Two major red flags in the name itself: Kids and Safety. Anything done in the name of either is already terrifying, but when I see both I suddenly feel the need to get a bunker and shelter in place with my canned goods and packets of powered meals.

It will indubitably fail at achieving safety for children, but the extent of that failure is yet unknown.

The intentions of the bill are self-evident. The actual meat of the bill, suggests they could connect the dots to save their own lives, much less the lives of minors.

It basically asserts that platforms, such as Facebook or Google, have a “duty of care” to look out for the best interests of a minor and “prevent harm to minors”. In fact, the approach this bill takes to block anything to do with self-harm will likely exacerbate these problems, according to TechDirt:

Last year we had a content moderation case study all about the very, very difficult and nuanced questions that websites face in dealing with content around eating disorders. Many of them found that trying to ban all such conversations actually backfired and made the problem worse. But often by allowing conversations about eating disorders it actually helped steer people away from eating disorders. In fact, much of the evidence showed that (1) people didn’t start getting eating disorders from reading about others with eating disorders, and (2) people writing about their eating disorders made it easier for others to come and help them find the resources they needed to get healthy again.

Prohibition rarely, if ever, solves for bad behaviors. It just drives them into the shadows of an unregulated and unseen space. Hiding a problem isn’t the same as solving one. And the idea that we can simply and successfully ban our way out of drugs, alcohol, prostitution, guns, gambling, eating disorders, suicides, or any other vice in the arsenal has already been disproved a hundred times over.

If nothing else, this will worsen the plights of troubled children by hiding the help and resources they seek, and could potentially be used as a backdoor into spying on everyone.

Yet another tactic getting very little press.

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