Techdirt on the FBI and geofencing misuse.

[ancianita]

Because the more you know about how the FBI works... what Garland does about this isn't yet apparent.

https://www.techdirt.com/2022/12/05/j6-suspect-challenges-fbis-geofence-warrant-exposing-the-massive-scale-of-the-feds-data-haul/?fbclid=IwAR35L_Zw6-Utgd5JJDXNRIik-IVbrF3zL_Hv5tnpaJ9vxBhpq3B-77Z1gQ8

... geofence warrants don’t have a particular target. The only probability (as in “cause”) that exists is that it’s highly likely Google has collected some location data — data completely divorced from the cell towers owned and operated by cell service providers. These warrants dodge the scrutiny of Carpenter. And, since they’re warrants, it’s also possible to dodge judicial conversations about where the Third Party Doctrine begins and ends.

Geofence warrants have no specific target. Instead, law enforcement hopes grabbing massive amounts of data will help them work backwards from the haystack to the needle.

But that’s not how things are supposed to work under the Fourth Amendment. Facts need to be particular at the outset, not several steps removed from the original dragnet. Some courts have rejected these fishing expeditions. Others have found there’s no privacy interest in data willingly (but actually unknowingly) shared with third parties like Google.

When Trump supporters converged on the Capitol Building in hopes of (apparently violently) keeping their preferred president in office, the FBI — pursuing cases involving a ton of federal crimes — started searching for suspects. This search began at Google with the deployment of geofence warrants issued in hopes of giving the feds a list of investigation targets.

The warrants used by the FBI remain under seal. But a challenge of this so-called evidence by a January 6th defendant has exposed just how much data was sought, along with the efforts made by the FBI to narrow down a voluminous data dump into something it could use to locate investigation targets...

Mark Harris of Wired has written a pretty thorough examination of the government’s geofence-related efforts. That report is largely based on a suppression motion [PDF] obtained by Marcy Wheeler, who broke the news at her blog, Emptywheel. Wheeler says she’s been waiting for a competent challenge of a geofence warrant...

The problems inherent to these warrants are present here. The government asks for information on everyone in an area when a crime is committed, despite knowing that almost everything it requests will result in Google handing over location data and identifying info on dozens, hundreds, or — in this case — thousands of innocent people. That it may help guide investigators towards legitimate investigative targets isn’t enough to excuse the initial intrusion. And this info can be obtained for nearly any law enforcement reason, whether it’s to identify people who performed a violent raid of a federal building or women just seeking contraceptive advice.

This challenge could prove uncomfortable to the federal government. What’s shown in this suppression motion isn’t pretty. Better still, it makes the sealing of these warrants moot, which means the court should unseal them in the near future because whatever the government wanted to keep hidden is no longer a secret. The federal court system needs to subject these warrants to a whole lot of scrutiny. That they’re warrants shouldn’t excuse the fact that they’re untargeted dragnets the government hopes will eventually result in a list of criminal suspects. The entire process inverts the Fourth Amendment.

https://embed.documentcloud.org/documents/23329355-j6-geofence-mtd/

[emulatorloo]

1. Here's Emptywheel's take on it:

MORE ON THE GOVERNMENT’S JANUARY 6 GOOGLE GEOFENCE

December 1, 2022/11 Comments/in 2020 Election, emptywheel, January 6 Insurrection /by emptywheel

https://www.emptywheel.net/2022/12/01/more-on-the-governments-january-6-google-geofence/

Yesterday, the government submitted its response to the challenge, which better explains how the GeoFence was used and why it is highly unlikely the conditions present with this GeoFence will be replicated in the future. That description is here.

As described this was a three step process:

Provide an anonymized list of the phones using Google Location Services that were present in the Capitol between 2 and 6:30PM on January 6 (whether in Google records preserved on the evening of January 6, the morning of January 7, or still on January 13). In addition, provide anonymized lists of phones using Google Location Services present in the Capitol between 12:00 and 12:15 and/or 9:00 and 9:15 PM on January 6.

Eliminate devices believed to be legally present in the Capitol (because they were in the earlier and/or later lists, so there before and/or after the riot), and identify those that evinced likely criminal behavior, either because the location data showed at least one hit entirely within the margin of error, or because there device showed presence in the Capitol (but not entirely within the margin of error) but also showed evidence of account deletion.

this is a quote from the govt filing:

First, the government compared the 2:00 p.m. to 6:30 p.m. data with the noon and 9:00 p.m. “control” lists, and then struck the control-list devices from the main list. Def. Ex. A at 27. That process eliminated over 200 unique devices. Def. Ex. B. at 7. Second, the government eliminated all devices except those that had at least one location data point within the Capitol building with a margin-of-error radius entirely within the geofence. Def. Ex. B. at 7. This process reduced the pool to approximately 1,500 unique devices. Id. Third, the government added back 37 devices that, despite not having a margin-of-error radius entirely within the geofence, still hit on the geofence between 2:00 p.m. and 6:30 p.m. and, in addition, had another indicator of criminal activity: the account’s Location History data was deleted at some point between January 6 and January 13.

For the resulting ~1,500 devices, DOJ obtained a second warrant for Google to obtain the account identifier.

As the government explains this Google GeoFence differs from ones that have been overturned in several ways. Most importantly, in addition to the claim that the use of Location Services is voluntary (as distinct from location services associated with using cell phones), which was rejected in other GeoFences, here, the government also argues that, even on a normal day, anyone entering the Capitol would have no reasonable expectation of privacy, but all the more so here, where it was closed to the public.

So whereas the government argued that with Google and Facebook, users had no Reasonable Expectation of Privacy regarding information voluntarily shared with the tech company, they appear to have pursued individualized warrants with cell companies because sharing that information (under Carpenter) does involve REP. For all three, though, I think the government would argue there was no REP for people who entered the Capitol without authorization.

[ancianita]

4. Thanks for this.

[emulatorloo]

8. Thanks for your post too! Much appreciated.

[emulatorloo]

3. The same. See my post above from Emptywheel.

One of the relevant bits:

‘ As the government explains this Google GeoFence differs from ones that have been overturned in several ways. Most importantly, in addition to the claim that the use of Location Services is voluntary (as distinct from location services associated with using cell phones), which was rejected in other GeoFences, here, the government also argues that, even on a normal day, anyone entering the Capitol would have no reasonable expectation of privacy, but all the more so here, where it was closed to the public.

So whereas the government argued that with Google and Facebook, users had no Reasonable Expectation of Privacy regarding information voluntarily shared with the tech company, they appear to have pursued individualized warrants with cell companies because sharing that information (under Carpenter) does involve REP. For all three, though, I think the government would argue there was no REP for people who entered the Capitol without authorization.’

[ancianita]

5. Glad to see this issue in clearer focus.

It's just that the Right don't care if it enters the public awareness, or else these suits might further chip away at their base. And their anti-government drama script production credibility.

And neither does M$M.

It's also a good point at which to reflect on how solid the DOJ's convictions have been -- none have been overturned on any issues of facts and law.

[emulatorloo]

9. I really enjoy reading the DOJ's filings. They are well-argued, detailed AND easy to understand.