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Sir Author Conan Doyle’s Sherlock Holmes once said, “Once you’ve eliminated the impossible, whatever remains, no matter how improbable, must be the truth.” It’s a rare example of deductive reasoning, as he normally extrapolated possibilities from evidence, rather than testing theories with evidence. Holmes was a clever man, but he never could have imagined the tools police would use to track criminals down today. Perhaps he wouldn’t agree with the notion of considering everyone guilty then ruling them out with deeper searches. A new law certainly doesn’t.
Geofencing is the act of using GPS to sort of cast a wide net. You can use it to suggest coupons on someone’s phone for a store when they enter the geofence you’ve set up. Geofencing can also flag everyone who passed through certain areas and when they came through. That particular feature is one employed by police. They can look at who passed through an area around the time someone committed a crime. It turns anyone who walked through an area into a suspect, and therefore gives police the probable cause to search a person. You could have been the suspect of a crime because you walked past a particular intersection during a two hour window.
Police also look at browser history, something they can get from your cellular provider, search terms from Google, or other networks. This is to identify potential suspects, but violates the privacy of the innocent people they search along the way.
A new law in New York could put the practice to a halt.
Geofencing, Browsing History, and Privacy
You’ve used geofencing before, even if you don’t know it. It’s a simple practice, thanks to smartphones. Have you ever gone to eat somewhere and had Google Maps ask you to rate the restaurant or bar you were just at, even if you didn’t use Google Maps to get there? That’s geofencing. They tracked your location, saw you stayed in one spot withing a particular geofenced area, and then sent you a notification based on that. If you have the Apple Store app, you may have noticed that when you’re in line to pick up a new iPhone, it will offer you directions via a notification when you get to the store.
Geofencing can be useful, but it certainly feels like a violation of your privacy, even when companies use it and protect your location data. But what about policing? You may think you’ve never been the suspect of a crime, but that’s probably not true. It’s possible you’ve been flagged for further scrutiny just because you walked or drove through a particular area. How deeply were you investigated? Some people have been considered suspects for crimes and searched enough that Google informed them of the search. What other data did police collected based on your location?
Google’s Unique Data Trove
Police go to Google often. The search giant also tracks Android phone users as well as anyone using Google Maps, Waze, or other third party apps who haven’t turned off background location. Furthermore, they’re the top search engine by a wide margin, so they can also provide search history. These are often considered reverse searches. They start with an idea and then find everyone who matches that idea. So anyone who was in a particular area or anyone who searched for something is now a suspect.
About a quarter of all police requests to Google have been for geofence searches. The number is growing fast. In 2018, police made less than 1,000 of such requests. In 2020, Google processed 11,500. Police have caught on to a new tool to search as many people as possible.
A Law to Protect Bystanders
Once police have a suspect, they have good reason to search that suspect’s information. However, searching people, with no probable cause, is a violation of constitutional rights. Of course, the men who wrote those rights had no idea about smartphones. Still, the idea was the same. Police don’t have the right to search you without good cause. Simply living in an area or walking through a certain intersection is not probable cause. Even suspecting someone for searching particular terms, depending on the terms and context, is a step too far. If police have the right to treat everyone as a suspect, they will. That’s why protections against unlawful searches were so important that they were included in the Bill of Rights.
Currently, police can search your personal location data and search history without any real probable cause. They won’t even have to tell you they’ve done it because they can do it without a warrant. This law in New York could be the first of many nationwide.
Perhaps, like Holmes, police should consider relying on detective work instead of technology. They don’t have a good track record with the latter.
Sources:
- Leila Barghouty, The Markup
- Lucas Ropek, Gizmodo
- Zack Whittaker, TechCrunch