Yes, I see this. My counter argument is that if the police can’t only search the records of the suspects if they don’t know who the suspects are.
I don’t like the idea of geofence warrants, where the governments wants to know every phone that was in a particular area during a period of time. That feels too broad to me. Wanting to know who searched for a residential address during a two week period doesn’t seem to broad to me. Sure, it’s going to pick up a couple of delivery drivers, the parents who dropped kids off for the birthday party, and others, but that isn’t too different than @DavidNRockies storefront security camera example.
The big catch is I generally don’t trust the police enough to not fixate on some innocent Uber Eats driver with a record, and ignore the actual perpetrators.
Possibly, and I don’t know the exact details of this case.
If I am logged into Google, and search Google maps for an address, that is going to be tied to my account, whether I’m at home, on public wifi, or using a VPN.
If I’m not logged in, am using a clean and private browsing session that isn’t identifying itself with tracking fingerprints, then a VPN or even public wifi, would probably be adequate to hide my identity. That just makes the police go up one step. If the public wifi requires a login, then they might be able to find out who was logged in at the time of the search. If the VPN keeps logs and responds to warrants/subpoenas/emails then the VPN will be able to identify their customer.
Not a lawyer!…would the court have found defective a warrant to obtain a business’s sign-in book if that were a location of a crime? If not, ISTM this is analogous. The cops see everyone who logged in that day, criminal or not.
This was a look-up for a residential address, right? That’s what sticks out for me. I may be wrong, but I suspect in any given week, the number of people searching for my address is zero or near zero. It doesn’t seem wacky to think someone who searched for the address of a murder victim is a suspect.
I know the ruling indicated that the warrant was, in fact, defective, so I suspect it has to do with the level of suspicion required for a warrant. Probable cause? Maybe that’s where the search jumps the rails. But then I’d still have the same question about the sign-in book.
Reminds me of the case where a serial killer was tracked down through an online map he’d downloaded and sent to a reporter to brag about a murder and indicate where he’d dumped the body.
This particular slope doesn’t seem very slippery to me.
Police will generally not be held accountable for a defective warrant. The court excludes evidence obtained by government in violation of individual rights to dissuade the government from violating said rights. When a warrant is defective it is usually the judge or magistrate who made a mistake, and the govt. can rely on a “good faith” exception to introduce evidence despite the warrant being invalid.
Suppose a judge is murdered, and his or her spouse tells the police that, last month, they got a tremendous number of hang-up calls with nothing showing on caller ID.
And suppose Verizon has a giant database table with every phone call made in Pennsylvania last month.
Then Verizon receives a subpoena to search through all those hundreds of millions of calls, including at least one to and from almost everyone in the state, and report out just the ones incoming to the judge’s house last month with caller ID blocked.
Personally, I think this is good police work. I hope it is done in such a case.
My understanding (perhaps flawed) is that the 4th amendment was a reaction against writs of assistance that allowed the authorities to search every house in a community. A good case could be made that the subpoena I just described is a modern-day writ of assistance. If so, I would respond that the 4th amendment needs to be interpreted in a living constitution manner (or rewritten, but that’s politically impossible).
Another possibility is that Verizon has hundreds of thousands of separate database tables with the calls for each telephone number in Pennsylvania. In that case, the subpoena is very specific with no 4th amendment issue. And yet, there is no real-world difference in the two database searches. The only difference comes from an otherwise trivial technical choice Verizon made when designing their database. This may help illustrate why I think the search should be allowed.
The Google keyword search has the same issue. Maybe Google creates millions (billions?) of small history tables specific to each search term combination, with only a few customers mentioned in the average table. Or maybe they have bigger tables with millions of customers. Each way, I am glad they were able to find the arsonists (assuming allegations are true).
P.S. to the non-techie majority: For the word “table” I keep using above, think spreadsheet. Each of these database tables is, for the purpose of the thread, extremely similar to an Excel speadsheet.
My understanding (perhaps flawed) is that the 4th amendment was a reaction against writs of assistance that allowed the authorities to search every house in a community. A good case could be made that the subpoena I just described is a modern-day writ of assistance.
I disagree, on the basis that the “houses” being searched when the
government asks Verizon for phone records (or Google for search logs)
are not, in fact, houses at all. Rather, they are buildings in which
Verizon or Google store business records. Likewise the “papers” being
searched don’t belong to the individuals in the community, they are
strictly the property of Verizon (or Google). A warrant or subpoena of
a phone or internet service provider can, whereas a writ of assistance
does not, specify the place to be searched and the particular things
to be seized.
I don’t think it matters how Verizon or Google structures their data.
Most evils associated with a writ of assistance do not carry over, not
the least of which is the constant threat of disruptive lawmen
physically intruding upon one’s home.
I would start by saying the 4th Amendment does not require postal
service workers to obtain a warrant before reading the address on the
outside of an envelope. The inside is protected, the outside is not,
because it is voluntarily disclosed (in this case, to the government).
The fact that people speak about user “privacy” doesn’t necessarily
mean the law recognizes a privacy right. Most people, for example,
would say your bank records are confidential. Yet in the landmark 1976
case of U.S. v. Miller, the Supreme Court refused to extend 4th
Amendment protection to bank records, reasoning that you have no
reasonable expectation of privacy when you voluntarily give
information to a third party (the bank). Miller is still good law
and grand juries may still subpoena your bank records without a
warrant based on probable cause.
Three years later the Supreme Court had a case where Baltimore police,
without a warrant but with the phone company’s consent, installed a
pen register at the phone company’s central office. A pen register
recorded the numbers called on a given line, in this case it recorded
that the defendant called his victim to harass her after a robbery.
The court ruled that no warrant was required, reasoning that there was
no reasonable expectation that the numbers dialed were private
(therefore no search) since they were “disclosed” to the telephone
company. Smith v. Maryland, 442 U.S. 735 (1979).
Now, this line of precedent stops when it comes to location data and
GPS tracking. In the 2012 case of United States v. Jones, a
unanimous Supreme Court held that placing a GPS tracking device on a
car and tracking it for a whole month without a warrant was
unconstitutional; four members (a minority) reasoned that such
detailed location tracking over such a long period of time violated a
reasonable expectation of privacy. In 2018, case Carpenter v. U.S.,
a majority of the court held that it was unconstitutional for police
to conduct a warrantless search historic cell-site records that
detailed defendant Carpenter’s location over four months, reasoning
that this, too, violates a reasonable expectation of privacy.
But as far as I am aware, detailed location data over a long period of
time is the only exception to the so-called ‘third-party’ doctrine.