By Zellnor Myrie and Austen Fisher
A group gathers to peacefully protest, a congregation gathers to pray, a family sits down to eat dinner at a local restaurant. None of these people realizes they are being tracked, their location data collected, all thanks to one of the most dangerous surveillance tools in modern policing: their own cellphones.
Police exploit geofence warrants every year, allowing them to trawl digital dragnets through entire communities. Now New York lawmakers are poised to pass a first-in-the-nation ban on police use of these warrants.
Geofence warrants allow law enforcement to force Google and other tech companies to identify everyone in a specified area during a period of time. They enable the police to search any area, regardless of size or the number of people whose data is collected. Other warrants require proof that an individual is suspected of a particular crime, but police issue geofence warrants even when they cannot declare how many people’s information will be combed through. Therefore, most data collected through geofence warrants is innocent bystander data.
Lawmakers also aim to stop “Keyword search warrants,” which force search engines to identify everyone who searched a specific term. For example, when a witness’ car was set on fire in the infamous R. Kelly case, police collected the IP addresses and browser accounts of everyone who searched the address of the home near the fire. An affidavit supporting the warrant is silent on how many peoples' data was searched in exercising this warrant. In 2019, the Manhattan district attorney’s office obtained a geofence warrant after the Proud Boys attacked counter-protesters. Notably, the police did not request a warrant to search the Proud Boys attackers. Instead, they requested a geofence warrant to spy on the counter-protesters.
Compare this to 2015, when police used a geofence warrant to spy on Black Lives Matter protesters in Clarkstown, Rockland County. Police started tracking BLM organizers’ Twitter and Instagram feeds despite any evidence of, or even threats, of violence from the group.
Geofence warrants violate the Fourth Amendment’s bedrock protections against search and seizure, and their use to target protesters is inconsistent with First Amendment protections.
New York’s proposed legislation also prevents law enforcement from buying geofence and keyword data. Currently, police purchase data and freely use it, evading legal restrictions. This bill ensures data bought by police is unusable at trial.
Tech companies are on board with the proposed legislation. When geofence warrants force companies to turn over data, it harms companies, their users and the platforms we trust. Preventing a future where our devices are weaponized against us is supported both by public and private sectors.
With location data widely available, this geofence warrant ban is indispensable. BIPOC New Yorkers, faith communities and activists are already over-targeted by the NYPD. The geofence threat will only continue to grow and add to policing inequities if we fail to enact regulations curbing this abusive practice.
Geofence and keyword warrants pose a clear threat to New Yorkers, putting them at risk of false arrest, invading First Amendment rights to protest and worship, and giving police an Orwellian power to track innocent people. If we act, New York can keep everyone safer and uphold its commitment to civil rights. The only question is whether lawmakers will act before more end up in harm's way.
State Sen. Zellnor Myrie of Brooklyn represents the 20th Senate District. Austen Fisher is a second-year law student at Brooklyn Law School and a legal intern at the Surveillance Technology Oversight Project (S.T.O.P.).