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If Big Brother And Big Tech Can Team Up To Violate Political Opponents’ Privacy Over J6, They Can Do The Same To You

What the Rhine case reveals is the danger that a partnership between an equally politicized federal government and Big Tech presents to disfavored groups. 

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Google gave the feds the personal data of nearly 1,500 individuals based on cell phone location data indicating their presence near the Capitol complex on Jan. 6, 2021. The Department of Justice sought substantially more information, as well, according to a recent court filing, including data on Jan. 6 cell phone users wholly outside the Capitol. These facts, coupled with Google’s apparent disregard for the privacy rights of its customers, expose the potential for the government and Big Tech to collaboratively target political enemies.

In response to the riot that erupted inside the Capitol on Jan. 6, following a rally at the National Mall and a peaceful protest outside the Capitol, the Department of Justice launched a massive investigation seeking to identify and prosecute the individuals who committed crimes that day. Just a week after the Jan. 6 riot, “the government sought and was granted a ‘geofence’ warrant for data held by Google.” 

A “geofence” warrant compels tech companies, such as Google, to provide the identity of individuals whose cell phones were physically located within a defined geographical area during a specific time period. The Jan. 6 warrant served on Google compelled the tech giant to search all accounts to identify devices that appeared physically present on Jan. 6 from 2:00 p.m. until 6:30 p.m. in the “target location.” The “target location” or the “geofence” covered by the warrant included the Capitol building and the area immediately surrounding it, which together covered about four acres of land. 

In total, Google identified 5,723 “unique devices” that “were or could have been within the geofence during the relevant time period.” Of the 5,723 devices, the federal government then obtained a warrant forcing Google to provide “the phone number, google account, or other identifying information” for more than 1,500 cell phones that appeared located completely in the geofence area or in cases where the user had later deleted the location data.

How extensively the government used the data obtained from Google in investigating the riot is unclear, but the records eventually led the Department of Justice to charge David Rhine with four federal crimes: entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; disorderly conduct in a Capitol building; and parading, demonstrating, or picketing in a Capitol building. 

Rhine pleaded not guilty, and his public defender filed a motion to suppress the data obtained from Google connecting Rhine’s cell phone location to the Capitol, as well as any evidence the federal government obtained as a result of identifying Rhine through the geofence warrant. In his motion to suppress, Rhine argued that the geofence warrant was overbroad and lacking in particularity in violation of the Fourth Amendment.

Whether a geofence data search constitutes a “search” within the meaning of the Fourth Amendment remains hotly debated, and to date, only a few lower courts have addressed the issue. The handful of courts that have considered the issue have concluded the Fourth Amendment applies to requests for geofence data and thus the government must establish “probable cause” to obtain the data. And in upholding the geofence warrants in those cases, the courts have stressed the narrowness of the scope of the warrants at issue.

In contrast, here the government obtained the personal data of more than 1,500 people whose cell phones appeared to have been located within a four-acre area. This case will thus likely lead to significant developments in Fourth Amendment jurisprudence related to geofence searches. 

It will likely be years, however, before there is any clarity on the Fourth Amendment question. But what the Rhine case reveals now is the danger that a partnership between an equally politicized federal government and Big Tech presents to disfavored groups. 

The geofence warrant obtained by the federal government to investigate the Jan. 6 riot reached the personal data of more than 1,500 individuals who, according to Google’s estimation, were only 68 percent likely to have been present in the four-acre area consisting of the Capitol and its surrounding area. And even then, not all the areas outside the Capitol were off-limits. Further, while irrelevant to Rhine’s case, his attorney noted that, in addition to the personal data related to the 1,500-plus individuals, the “government later sought substantially more data from geofences in areas next to, but wholly outside of, the Capitol Building.”

The majority of individuals whose personal data was obtained by the federal government committed no crimes but likely attended the pro-Trump rally, making them political enemies of the Biden administration. Yet, because they were not charged with a crime, those American citizens will never know the government collected their personal information. And then there is the concern over what use the Biden administration may make of the information of innocent Americans it collected.

Equally concerning is the potential for the federal government to use geofence warrants only for disfavored suspects, or as a pretext to create an enemies list. The federal government sought geofence warrants for Jan. 6, but did they do so when St. John’s burned or to identify Antifa criminals? What about to identify the individual who planted pipe bombs at the RNC and DNC or to locate the vandals who targeted crisis pregnancy centers? Or might the Biden administration seek a geofence warrant to create a list of parents protesting school board meetings, using creative lawyering to devise a pretextual criminal investigation to justify the warrant?

In the past, Google has served as a check of sorts on overbroad data requests, as a Guardian article from last year highlighted. Then The Guardian warned of geofence warrants, suggesting that Texas law enforcement officials could use a pretext, “literally any other law on the books,” to obtain a list of cell phones connected to abortion facilities to target individuals under new abortion laws. A Google spokesman, however, told The Guardian that “the company has challenged many overly broad government requests.” “We use a rigorous process designed to honor our legal obligations while narrowing the scope of data disclosed,” the Google representative said in a statement. 

Google also filed an amicus curiae, or friend of the court brief, in a criminal case the federal government brought against a bank robber, with the tech giant taking the position that a geofence search is a “search” within the meaning of the Fourth Amendment and as such requires the government to obtain a warrant. To date, Google has not filed a similar brief in the Rhine case, and an email to the attorneys representing Google in the previous case, inquiring whether they intended to submit a brief in the Jan. 6 case, went unanswered.

Briefing in the Rhine case also revealed another anomaly, with Rhine’s attorney claiming that even before the government served a geofence warrant on Google, the tech giant actually preserved the location data of its users from the evenings of Jan. 6 and 7. According to Rhine’s attorney, Google preserved that data in violation of its own policies that represent to its “users that if they choose to delete Location History, that data is indeed gone (not preserved by Google).” Then, after the DOJ served the geofence warrant on Google, Google searched the preserved data for the government. 

Whether the DOJ asked Google to preserve the location data is unknown, but given the cozy relationship between the government and Big Tech as demonstrated by the censorship of disfavored views, that is a distinct possibility. Either way, Google apparently ignored its own policies to help the government when it was a matter of potential crimes related to Jan. 6. One must wonder if Google would have done the same had the DOJ sought data related to the violence flowing over from a Black Lives Matter protest.

While the country waits for the courts to decide the constitutional question, the conversation should not be so limited because the Fourth Amendment represents but a sliver of the concerns geofence warrants raise.


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