Monday, August 30, 2021
Jennifer Lynch (Electronic Frontier Foundation (EFF)) has posted an abstract of Modern Day General Warrants and the Challenge of Protecting Third-Party Privacy Rights in Mass, Suspicionless Searches of Consumer Databases (Hoover Institution Aegis Paper Series) on SSRN. Here is the abstract:
Today, more than ever, law enforcement has access to massive amounts of consumer data that allow police to, essentially, pluck a suspect out of thin air. Internet service providers and third parties collect and aggregate precise location data generated by our devices and their apps, making it possible for law enforcement to easily determine everyone who was in a given area during a given time period. Similarly, search engines compile and store our internet searches in a way that allows law enforcement to learn everyone who searched for specific keywords like an address or the word “bomb.” And DNA is now amassed in consumer genetic genealogy databases that make it possible for law enforcement to identify almost any unknown person from their DNA, even if the unknown person never chose to add their own DNA to the database.
Modern consumer databases like these allow the police to conduct “suspicionless searches”—searches that are not based on individualized suspicion. This article focuses on three versions of these suspicionless searches: reverse location warrants issued to specific internet service providers (also known as “geofence warrants”), searches of de-identified location data generated by applications on a user’s device and aggregated by third party data brokers, and forensic searches of consumer genetic genealogy databases. The article discusses the privacy implications posed by a lack of restrictions on police access to the data, and the challenges to developing and enforcing new restrictions. The article addresses the Supreme Court’s 2018 opinion in *Carpenter v. United States* and discusses why that case may be a difficult fit with the facts of these searches. The article then suggests a path forward; it argues these searches should be addressed on two fronts at once. Suspicionless searches should be challenged as unconstitutional general warrants in the courts, and states and the federal government should pass laws explicitly limiting or banning police use of these technologies. The article concludes with an analysis of three current bills that would address and expressly limit these searches.