HB 57: Restrictions on Geofence Surveillance by Law Enforcement
In 2019 we helped successfully pass HB 57 to make clear that — without a warrant — your device and the data you entrust to third parties is protected from law enforcement searches. Even the US Supreme Court has begun to support digital privacy, extending those protections nationwide for cell phone location records.
But broad warrants are still being issued that are inconsistent with Fourth Amendment restrictions. In August 2022, Libertas published a policy memo detailing how Utah law enforcement routinely relies on the use of reverse location, a.k.a. geofence, search warrants. These are dragnet searches requesting all user data within a set radius near a crime scene. Simply put, law enforcement submits geographical coordinates to a judge within a warrant so that they can ask a third party, like Google, for the identifying information of any devices that were within those coordinates during a certain time frame.
There are currently no laws regulating how police access data, making it easy for innocent people to be included in crime investigations based purely on their location. In order to protect the privacy rights of individuals, there must be reasonable guardrails placed on the use of reverse location searches.
And that is exactly what Representative Ryan Wilcox’s 2023 House Bill 57 does. This bill codifies warrant requirements and establishes reporting requirements to monitor the use of this investigative technique. Ideally, this legislation would bar the use of reverse -location searches for low- level offenses like misdemeanors, and require particularity as to an individual before being issued. However, the warrant requirements in HB 57 are far superior to the current legal landscape, which is entirely unregulated.
Under HB 57, law enforcement may not obtain a warrant for a reverse location search unless the warrant application includes: (1) a map showing the visual representation of the geofence and (2) a notice to the judge reviewing the warrant. The notice informs the judge of the broad nature of the search, including how innocent people’s data will be captured within the results.
These requirements ensure judges have an accurate understanding of how broad the search requests are before issuing warrants. Given the novelty of this investigative technique, it is essential to require law enforcement to provide judges with all necessary information when seeking these warrants.
In addition to the codification and strengthening of warrant requirements, HB 57 requires law enforcement to provide a detailed annual report to the State Commission on Criminal and Juvenile Justice. This report must include how many reverse location search warrants were requested, how many were granted by a judge, and the number of times law enforcement used information from a reverse location search to investigate unrelated crimes, among other information. This is an important protection against abuses of power because further investigating the use of reverse location searches ensures law enforcement agencies are complying with the guardrails put in place by the state legislature. Finally, this bill protects the rights of accused defendants. In cases where police obtain reverse location information outside of the rules of HB 57, defendants can exclude this evidence from court.
State legislatures play a vital role in upholding our constitutional order, particularly in relation to privacy rights that are rapidly deteriorating. If the Utah Legislature fails to vigilantly secure privacy protections essential to a free people, then the digital era will erode our privacy rights into a meaningless string of words.