To be honest, this seems like a pretty reasonable search; a warranted search, narrowly scoped in both keywords (a specific address) and timeframe.
Meanwhile, this:
> “If Google is allowed or required to turn over information in this Colorado case, there is nothing to stop a court in a state that has outlawed abortion to also require Google to turn over information on that kind of keyword search.”
seems like it's of entirely different magnitude, far less amenable to such a narrow scope.
If the requirement to be narrow and time limited is not codified in law (which afaik it is not) it is pretty much guaranteed such broad searches will happen. All it takes is convincing a judge.
If the past has taught us anything it's that law enforcement will use any tool to the maximium of what is allowed and then beyond (e.g. coerced phone searches, racially motivated stop and search, drug dogs to force vehicle searches, privately sourced licence plate tracking and face recognition, criminal DNA testing from rape kits, forced biometric collection and more).
> no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
>The FBI's role in the process is a condition of the Federal Communication Commission's equipment authorization issued to the Harris Corporation.
The result is that members of the public, judges, and defense attorneys are denied basic information about local cops' use of invasive surveillance gear that can sweep up sensitive location data about hundreds of peoples' cell phones. For example, when we sought information about Stingrays from the Brevard County, Florida, Sheriff's Office, they cited a non-disclosure agreement with a "federal agency" as a basis for withholding all records. When the ACLU of Arizona sued the Tucson Police Department for Stingray records, an FBI agent submitted a declaration invoking the FBI nondisclosure agreement as a reason to keep information secret.
Stingrays are typically warrantless; a very different scenario than this case. Their very nature makes them pretty broadly scoped, too, impacting anyone in range.
(I'm of the opinion they're a Fourth Amendment violation, and quite a few court cases are winding their way through the system. Quite a few judges have already ruled against their warrantless use. https://en.wikipedia.org/wiki/Stingray_use_in_United_States_...)
It gets fuzzy when third parties are involved. For example, looking at security camera footage seems to require a warrant, but no warrant is generally required if the search is consensual (and most people aren't against sharing video camera footage to aid an investigation of a serious crime as long as it is practical).
This whole system really highlights a flaw in using a 200 year old document as the basis of our legal system. Pervasive surveillance in the form of video cameras, photographs, audio, and now Google search requests wasn't really a thing at the time. I suspect with the present conditions, the authors of the 4th amendment would have put in an even stronger requirement for warrants regarding data from third parties and maybe even searches generally given how non-consensual consensual searches often feel to everyday citizens. Unfortunately, I think textualism is more in vogue with the current SCOTUS.
If we want stronger requirements for warrants regarding data from third parties, we can just pass laws with stronger requirements. The constitution is not a barrier here. Even if had been written 25 years ago it wouldn't have predicted the data dystopia we are in now.
"The Reuters analysis supports Sotomayor’s assertion that the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police. Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs’ appeals, the acceptance rate was slightly below the court’s average."
"In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal."
The legislature is ultimately not capable of anything. Passing legislation requires enormous barriers: the House and the Senate (usually by a wide margin) and the President and not having the Supreme Court just sweep it away.
In some cases, it takes only a single Congressman to prevent a law from being passed. If the minority party is dead set a bill -- if only for political reasons -- it often requires absolute unanimity on the other party to pass it, an unreasonably high bar to pass.
Legislation is nearly always trivial. They are only barely capable of passing even the most basic, crucial, mandatory law appropriating funds for the executive branch -- and that's only possible because the filibuster does not apply to appropriations bills. Real legislation is sometimes bundled into appropriations bills precisely to piggyback on that exception.
Theoretically, the legislature can do lots of stuff. Pragmatically, you can't simply say "well, the legislature should act". There is an enormous thumb on the scale in favor of the status quo.
>This whole system really highlights a flaw in using a 200 year old document as the basis of our legal system. Pervasive surveillance in the form of video cameras, photographs, audio, and now Google search requests wasn't really a thing at the time.
A fair point, but the controlling "document" isn't 200 years old. In fact, it's 46 years old[0] and is called the Third-Party Doctrine:
"The third-party doctrine is a United States legal doctrine that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have "no reasonable expectation of privacy" in that information. A lack of privacy protection allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment prohibition against search and seizure without probable cause and a judicial search warrant"
The tl;dr is that if you voluntarily give a third party (not the government and not you) information (e.g., web search requests), that information is not protected under the 4th Amendment.
As such, even though the police got a warrant, it wasn't necessary for them to do so unless Google balked at providing the information.
Oh no, they need not convince a judge. Thanks to the Patriot Act, they can surveil and ask for permission ex post facto. Or, surveil and never ask for permission, if the LEOs decide not to request a warrant... again, after the surveilling has been completed.
However, backdoor sunset clauses exist & the bill to reauthorize it have already been passed and sit on the back burner, as Trump threatened to veto it. I suppose when the sunset clause is no longer exploitable, they'll get the sitting POTUS's sig. More in TFA:
how about adding specific person Jane Doe searches address ___ of planned parenthood within 2 weeks of last menstruation
To me the ultimate problem isn't the scope of the search. It's that the guardrails against partisanship are gone via takeover of law by Republicans and christian crusaders.
Attorneys general and judiciaries have huge power and are so lopsided depending on geography and political party in charge. and I don't trust the ultimate Supreme Court to do what's right in the end
that it's illegal now is crazy. That is seems likely that they will try to prosecute people (more likely TX style citizen suits) for getting healthcare in a different state is crazier.
That's wishful thinking. Authoritarians who don't respect hundreds of years of precedent aren't suddenly going to draw a bright line at Google searches.
I hope courts require both that the requested search data is very specific to the crime (which you are right, a specific address is specific), and I also think that such requests should be by court order/search warrant. The specificity requirement is most important, but I think law enforcement should not get a blank check to do these sorts of queries. It's a lot harder to convince a judge/jury that a query was too broad after it turned up good evidence compared to rejecting the query before it is run and collected.
That's all from a legal perspective. From a policy perspective, I think our search histories should not be collected in the first place as much as practically possible. In meatspace, libraries are actually very protective of what books you look up/checkout. Seattle City Library actually requires you to opt-in for tracking of your checkout history because they know this sort of data is sensitive.
> seems like it's of entirely different magnitude, far less amenable to such a narrow scope.
Why?
If the police finds a burnt house, and check who googled for an address... how is that different to them finding an illegal abortion clinic, and checkng who googled for that address?
> If the police finds a burnt house, and check who googled for an address... how is that different to them finding an illegal abortion clinic, and checkng who googled for that address?
Sure, but there's still a big scope difference; "who searched for this one address right before it burned down" versus "who searched about abortion; we don't know anything much more specific than that".
> Google delivered information on 61 queries, according to court filings, along with the IP address — a unique number for each computer on the internet. Investigators focused on a handful of those queries, asking Google to provide detailed user information for them. One of them was linked to the 17-year-old.
I wonder if the future of policing will become so lazy/understaffed that if they can't find a digital paper trail for a crime via ML, it will be kicked to the backlog.
I agree with the other commenter who said that, if the keyword search is narrow in scope such that it would apply to this particular crime (in this case, the exact address, and timebound), then it strikes me as a "reasonable" search, and not a fishing expedition. Furthermore, it seems pretty analogous to what is required for a warrant for a physical search - you can't put out a broad dragnet, it must be targeted in scope, and the definition of "targeted" has pretty much always come out of case law.
Now, when it comes to the fear about being used to prosecute abortions, that is really a totally separate issue, as doing a reverse keyword search for "get abortion pills by mail" is too broad. But I think the broader issue with the abortion examples is that many people fundamentally believe the laws are unjust and deserve to be broken. Whatever the case may be, the legal system itself surely cannot differentiate between "unjust" and "just" laws.
It's an interesting subject until the article repeatedly suggests that these searches are going to be used to hunt down women who seek abortions. They could have picked literally any crime to pose that rhetorical situation for.
Yeah, it's rhetorical. Abortion is a timely subject. Last year, it could have been searching for "Black Lives Matter" groups, or 3-percent, or the address of the Capitol building on January 5th.
The big question here is "how much authority should the government have?", or the similar "how much crime is the right amount?". Don't say "complete authority" and "zero crime", unless you think the American revolution was a bad move, slavery should still exist as an institution, civil rights should never have happened, the Pentagon papers should still be a secret, etc.
They had to pick one that was a popular current topic of outrage. A couple of years ago they would have (and did) worried about using face recognition to identify rioters destroying property because back then, those people were the "breaking the law but should get away with it because politics" types of criminals.
Meanwhile, this:
> “If Google is allowed or required to turn over information in this Colorado case, there is nothing to stop a court in a state that has outlawed abortion to also require Google to turn over information on that kind of keyword search.”
seems like it's of entirely different magnitude, far less amenable to such a narrow scope.