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As protests against police brutality swell in cities across America, lawmakers in New York state are gaining support — including from some tech giants — for a recently introduced bill that would prohibit police from using so-called geofence warrants, which compel companies like Google to give up reams of data on who was in a certain location at a certain time.
The legislation, introduced by state Sen. Zellnor Myrie and Assemblyman Dan Quart, would be the first in the United States to bar police from seeking these warrants or from obtaining the data through voluntary means, like buying it from a data broker. The bill was introduced in April but is newly relevant as some fear this data could be used to crack down on protesters.
"It's easy to see how reverse search warrants can be used to target protesters and people engaged in legitimate First Amendment activities," Quart said. "I think the current environment is an opportunity to push this legislation."
Since the protests began, several new co-sponsors in both the state Senate and the Assembly have signed onto the bill. The legislation is also receiving some tepid support from Google, one of the tech companies whose compliance with these warrants has earned it notoriety. "We're encouraged to see lawmakers discussing legislation that acknowledges smartphones' crucial role in today's world and the need for rules to govern untargeted access to data by law enforcement," Google's director of law enforcement and information security Richard Salgado told Protocol.
Facebook spokesperson Andy Stone also said the company is "supportive" of the New York bill, adding that Facebook doesn't respond to these warrants.
The introduction of the bill comes as a high-stakes legal fight questioning the legality of these warrants is playing out in Virginia. But lawmakers and privacy advocates say protesters need protection from this type of surveillance quicker than courts can provide it.
"I think it's important for us to get statutes on the books as soon as possible because it's a timely issue," Myrie said. "This is potentially people's liberty at stake."
Geofence warrants are a relatively new but rapidly expanding phenomenon. Rather than issuing a warrant for data on a specific individual, these warrants seek information on all of the devices in a given area at a given time. Between 2017 and 2018, Google saw a 1,500% increase in geofence requests. Between 2018 and 2019, that figure shot up another 500%. That's according to a brief Google filed in Virginia, where a man named Okello Chatrie is currently challenging the use of Google location data to connect him with a bank robbery.
In a New York Times investigation last year, one Google employee said the company received as many as 180 geofence requests in a week. Google wouldn't comment to Protocol on the number of requests it received. The Times' story focused on an Arizona man who was arrested for a murder he didn't commit after police obtained his location data from Google. It drew widespread attention to Google's SensorVault database, which holds location data from hundreds of millions of devices that have Google's location history setting turned on.
When Google receives such a warrant, it supplies law enforcement with anonymized information on devices in the area. Once law enforcement determines which devices it deems relevant, Google will supply more granular information like, say, the Gmail name associated with the device.
"We will only produce Location History data if served with a search warrant," Google spokesperson Aaron Stein said. "We have not complied — and have litigated against — reverse [location history] requests without a search warrant."
Google's SensorVault system has attracted by far the most attention, including from Congress, but it's hardly the only company whose troves of location data police and government agents might like to mine. In at least one case in New York City, an investigator for the Manhattan district attorney testified that he sent location data requests to Uber, Lyft, Snapchat and Apple, too. In that case, the DA's office was seeking to identify four people allegedly associated with the far-left group Antifa who had clashed with members of the far-right group Proud Boys outside an event in October 2018.
According to the investigator, those requests weren't successful. But the fact that the Manhattan DA had undertaken such a search to try to identify protesters alarmed privacy advocates and lawmakers alike.
"It really makes a mockery of the Fourth Amendment," said Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project, which opposes police surveillance. "After seeing the scope of the abuse in that case and researching the practice more broadly, it was clear to us it was necessary to outlaw this type of search."
Cahn's organization began working with Quart, whose district includes the location of the Proud Boys incident. Along with the National Association of Criminal Defense Attorneys's Fourth Amendment Center and Myrie, they began drafting legislation.
In April of this year, they introduced the bill, in part, as a response to the COVID-19 crisis, which was already opening the door to new forms of location tracking to assist in contact-tracing efforts. "I thought it was important to not have this pandemic be the source of data collection that could adversely impact a lot of people in the community," Myrie, who represents a predominantly Black district in Brooklyn, said. The Black Lives Matter protests, he said, have only added to the urgency of the legislation.
In addition to prohibiting geofence warrants, the bill also bars "voluntary reverse location requests," in which police get access to location data from data brokers and other companies without a warrant. "We know there's a huge marketplace for all of our data and so many firms that would be eager to provide this data if they're getting paid for it," Cahn said. Last year, VICE revealed that T-Mobile, Sprint and AT&T were selling real-time location data to bounty hunters and other data brokers.
While data brokers may not love getting cut off from a potential revenue source, it's easy to imagine why tech companies would support a bill like this. Complying with these warrants is not only technically arduous, but it also opens tech companies up to accusations of aiding unjust policing practices at a time when the public is pressuring tech giants to cut ties with police.
Last year, the tech industry association CompTIA opposed a bill in Texas that would have specified that geofence warrants were legal in the state. And in its amicus brief in the Virginia bank robbery case, Google called these warrants "broad and intrusive." But the company spokesperson wouldn't say whether Google has ever fought back against them.
Mark Rumold, a senior staff attorney for the Electronic Frontier Foundation, argues they should. "They can and should contest the validity of the warrant," he said. "If they have done this and lost, they should make that public."
The bill in New York is still relatively new and is likely to face substantial opposition from the law enforcement lobby. It's also competing with a laundry list of other priorities for the legislature, which is still grappling with the devastating toll COVID-19 has taken on the state. But in recent weeks, New York's legislature has passed several substantial policing reforms, including a measure to ban chokeholds and repeal a law that kept police misconduct records secret. Myrie said he's "cautiously optimistic" that momentum could help fast-track this legislation.
"The crowds are not waning. They're growing," Myrie said of the protests. "The pressure legislators are feeling from the people on the ground has shattered what the political norms would be."