Protests, Virus Boost NY Bill To Ban Geofence Warrants

By Emma Whitford
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Law360 (June 12, 2020, 9:02 AM EDT) -- New York State legislators are hoping to build support for new legislation that would ban law enforcement from seeking broad warrants for cellphone data within a geographic area — a tactic they fear could compromise the privacy of New Yorkers participating in ongoing large protests against police brutality.

With so-called reverse location search warrants, or geofence warrants, law enforcement can request from a technology company — typically Google — the location history for all users present at a specific place and time in order to identify possible suspects. Privacy advocates say such warrants violate Fourth Amendment protections against unreasonable search.

State Sen. Zellnor Myrie, D-Brooklyn, introduced the Reverse Location Search Prohibition Act in April, but says that protests against the killing of George Floyd by Minneapolis Police renew the urgency.

"[The New York City Police Department] should tell us right now whether they have, currently are, or intend to use reverse warrants resulting from peaceful protests," Myrie said in a viral Twitter thread on the legislation. "Reverse warrants are constitutionally dubious under normal circumstances, they are downright dangerous now."

In a statement to Law360, Myrie added that the coronavirus has also heightened his concern, as people are urged to stay at home and could unknowingly land within the radius of a reverse warrant. 

"In the context of a global pandemic that has forced many New Yorkers to remain in their homes, reverse warrants pose great risks to those that live in communities that were historically subject to over-enforcement, like the ones I represent," he said.

The NYPD did not respond to a request for comment.

Confirmed reports of reverse warrants are limited. Last August, the New York Times reported that the Manhattan District Attorney's Office sent a warrant to Google as part of its investigation into members of the hard-right Proud Boys, later convicted for assaulting a group of protesters near the Metropolitan Republican Club on Manhattan's Upper East Side.

An investigator testified that the office sought phone records from spots in the area in the hopes of identifying protesters, to no avail.

"Our office does not disclose law enforcement operations or investigative techniques," Manhattan DA spokesperson Danny Frost told Law360.

The Proud Boys incident inspired Assemblyman Dan Quart, D-Manhattan, to sponsor the geofence bill in the State Assembly. Quart is running against Manhattan DA Cyrus Vance, who is up for reelection in 2021.

"I've been aware of these warrants, but then it was a technique used likely on my own constituents," Quart told Law360. "These are the opposite of a particularized search. It's the data of anyone in the area."

Myrie and Quart's bill is the first of its kind in the country, according to attorney Albert Fox Cahn, director of the Surveillance Technology Oversight Project, who helped draft the legislation.

"As far as I know no other state has outlawed reverse search warrants, but we're going a step further and blocking the use of commercial data brokers," Cahn told Law360. "We know there are a lot of companies willing to share this [data] as long as you are willing to pay."

Typically, Cahn said, these warrants pick up location history for all users within a specified area who have location history enabled on their phones. Google provides redacted data, and law enforcement can then request account information for specific users.

"They might know that user 'X' was circling the block of a bank that got robbed, and then say, give us user X's account information," Cahn said. "Which means not just their name and phone number and location history, but potentially all of the Google records such as emails and Google Voice text messages."

Google did not respond to a request for comment on the legislation.

In a December 2019 brief in the federal case United States v. Chatrie, Google noted the increased popularity of reverse warrants. The case involves a Virginia man who police identified as an armed robbery suspect using such a warrant. 

"Year over year, Google has observed over a 1,500% increase in the number of geofence requests it received in 2018 compared to 2017," the company wrote. "And to date, the rate has increased over 500% from 2018 to 2019."

The bill, A10246/S08183, has four cosponsors in the New York Assembly and six in the Senate. All are Democrats.

"It's premature for us to comment on it," Jason Conwall, a spokesperson for Gov. Andrew Cuomo, told Law360.

Quart said he hopes to rally support in a moment of strong momentum for police reform legislation in Albany. His office issued a press release on the bill Friday. Sen. Julia Salazar, D-Brooklyn, told Law360 on Thursday that she "fully supports" the bill and plans to sign on. 

"We certainly want to seize on the opportunity now that the legislature is really addressing police reform," Quart said.

--Additional reporting by Frank G. Runyeon. Editing by Rebecca Flanagan.

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