Justice and Due Process

Big Brother is Watching You

The House committee investigating the events of January 6, 2021, began releasing its findings to the public in a multi-week event on Thursday, June 9, 2022. The committee plans to reveal their findings through witness testimony and previously undisclosed images and exhibits.

However, Congress will not be discussing the ways in which law enforcement agents skirted the Fourth Amendment during their investigation process.

Generally speaking, those on the right and left have little in common, but protestors affiliated with both political movements have been targeted by law enforcement through the use of geofence warrants. 

In cases involving political protests, an individual who did not commit a crime could be implicated in a criminal investigation based, at least initially, on physical location alone. Geofence warrants were widely used to locate possible suspects involved in protests in Minnesota and Washington, DC, following the events surrounding George Floyd’s death and January 6. 

These warrants skirt the particularity requirement of the 4th amendment, allowing law enforcement to access information on anyone in a specific geographic area at a specific time. With this information, agents weed through the data in search of suspects.

In the case of the capitol protest, a Wired investigation found forty-five court cases cited geofence data to establish the physical location of defendants. Of course, the physical location of protestors does not necessarily establish criminal intent, but it can lead law enforcement to suspects. 

Wired spoke with Ari Waldman, a professor of law and computer science at Northeastern University. Waldmen expressed concerns with the widespread use of geofence warrants, stating his concern for the potential of abuse. 

He sees no tension between condemning protests that turn violent and protecting constitutional rights. “Even if I think staging a coup against a democratic government is abhorrent, it doesn’t mean that constitutional privacy protections shouldn’t be in place,” Waldmen said.

Despite the serious consequences of geolocation tracking, many, if not most, Americans are unaware of how much of their location history could implicate them in criminal investigations. Although Americans are largely unaware of what constitutes a geofence warrant, they have expressed concerns that their movements are being tracked by government and corporate entities.

However, geolocation tracking represents only one data point government agents may seek in an investigation. Reverse warrants (i.e. warrants lacking a particular suspect) can be used to obtain other information, such as search engine history.

Given the ever evolving nature of technological advancement, it is foreseeable that reverse warrants could apply to other types of data. For example, the company PimEyes uses facial recognition software to create a search engine for digital images. 

Policy makers and regular Americans of all political stripes should be concerned with the continued erosion of civil rights and the increasingly common habit of the government to surveil the public through a variety of digital technologies.