Molly McDermott: Utah should put limits around geofence warrants

Law enforcement searches of electronic devices need to be limited by law.

Utah’s use of geofence warrants is under the microscope. A recent KSL article highlights privacy concerns related to location tracking.

To the Founding Fathers who drafted and ratified the Fourth Amendment, the idea that nearly all of one’s intimate and confidential information would be stored in the memory banks of a computer chip smaller than a person’s finger would have been unthinkable.

As a result, technological innovation and integration into civil society has outpaced the law’s development, especially when it comes to warrant requirements.

The Supreme Court first created a test to determine when law enforcement needs a warrant to complete a search in 1967. That was decades before the internet, and all our connected devices, even existed. Back then, the risk of the government accessing a reasonable man’s “papers and effects” was infrequent because it was limited by logistics.

In the 21st century, technology greatly increases the risk of unconstitutional, warrantless searches.

The “reasonable man” — a vague legal term used to describe someone taking ordinary precautions to safeguard information — runs this risk every time he logs in to a computer, picks up the phone, tracks his workout or drives his car.

Even modern versions of the 1967 Supreme Court test don’t fully account for how much data is left unprotected under the warrant requirement. Most concerning, geofence warrants, are an example of a “legal loophole” law enforcement can use to perform searches that may not meet constitutional muster.

Geofence warrants don’t require police to have reasonable suspicion before requesting one. This is in contrast to traditional warrants for the search of a home, for example, which requires probable cause and reasonable suspicion to be approved by a judge. Before executing a geofence search, law enforcement need not be suspicious of any individual searched — meaning every cell phone user within a specified area is a suspect by association.

Traditional warrants must be detailed in the area they intend to search and the evidence they intend to recover. Geofence warrants are not particularized in this way. Law enforcement only has to describe a general area to be searched and often does not describe the type of data they expect to recover, or how it will aid in their investigation.

Utah is considering making legislative changes. This summer, the Utah legislature held an investigatory hearing regarding law enforcement use of geofence warrants. Privacy advocates testified that the lax standards used to obtain geofence warrants should be changed.

Legislators are not alone. Some judges require that a geofence warrant application describe the particular time, place and scope of a proposed search. Others require law enforcement to narrowly define the area searched to avoid capturing the data of too many bystanders.

Guidelines like these allow law enforcement to complete their investigation while protecting the privacy rights of individuals who were simply in the wrong place at the wrong time. In cases where these searches lead to an actionable tip, these guidelines also ensure that the police build their case against a suspect in a responsible manner that will hold up in court.

Other states should consider following Utah’s lead in investigating these law enforcement practices. By passing common-sense laws that put the constitution at the forefront, states can work to close these fourth amendment loopholes and restore confidence in the justice system.

Molly McDermott

Molly McDermott is a legal intern for the Libertas Institute, Lehi.