Geofence Warrants Can Identify Crime Suspects, But Are There Data Privacy Concerns?: Data Privacy Trends

This was a “true crime” case that I read and felt compelled to discuss here where the convicted perpetrators were caught because of their use of Google Maps during commission of a crime and a “geofence warrant” that the detective was able to obtain from a judge to identify the suspects.  Does everybody agree that’s a good thing?  Not necessarily.

According to NBC News (She didn’t know her kidnapper. But he was using Google Maps — and that cracked the case., written by Jon Schuppe), on June 16, 2017, a health-care worker was driving home from the hospital in Milwaukee where she worked, exited the highway, and was attacked by a man who threw himself into her open window. Armed with a box cutter and hammer, he made her drive off with him, then forced her to pull over and get into a dark-colored pickup truck, where he sexually assaulted her while an accomplice drove. Then they left her at the side of the road.

While that might seem like a random crime with slim odds of being solved (her basic description of the rapist and his truck wasn’t enough to narrow the search and her phone was taken, but it was turned off), she did recall that there was a Samsung Galaxy phone in the car that was running Google Maps as they drove past General Mitchell International Airport.  That led Milwaukee Detective Eric Draeger to seek a “geofence warrant”, which is a “digital data hunt that has since soared in popularity among police seeking help in all sorts of unsolved cases, from burglaries to murders.”

With the spread of the use of geofence warrants, the technique has drawn criticism from defense lawyers and privacy advocates who say it makes it easier for the government to track unsuspecting people who’ve been near the scene of a crime, even if they had nothing to do with it. The searches have been challenged as unconstitutional in Virginia, rejected as dangerous in Illinois and targeted for prohibition in New York. In Florida last year, a geofence search placed suspicion on a man who had innocently ridden his bicycle past a burglarized home.  And, while the technique was reportedly used successfully to find the suspect in a series of bombings in Texas, it also caused another man in Arizona to spend a week in jail for a crime his mother’s ex-boyfriend (who had sometimes used his car) was ultimately arrested for (both instances covered in a New York Times article from April 2019).

In the Milwaukee case, identifying the suspects became a top priority, with more than two dozen investigators and commanders involved, as the same two men were suspected in another attempted abduction hours before the victim was abducted.  Once Google helped law enforcement update the warrant to identify additional scenes linked to the crime, only one single phone in Google’s records met the search criteria.  Ultimately, the police obtained surveillance video of the two suspects from several of the places in the location history, lifted a fingerprint from the victim’s car and matched it with one of the suspects, found that suspect’s genetic profile “consistent with” a partial profile obtained from the victim’s rape kit and she identified the suspect as the rapist in a photo array. They also linked the same two suspects to the attempted abduction.

The accomplice pled guilty to kidnapping and was sentenced to 25 years in prison.  The accused rapist went to trial, the jury convicted him of all seven charges related to the attack, and a judge sentenced him to more than 100 years in prison.

When asked how the investigation would have gone without the location data from Google, Draeger said, “Without that information from Google, we were toast. They came through with information that gave justice to a woman who needed it.”

So, what do you think?  Do you think that geofence warrants are a good law enforcement tool to catch perpetrators or are they a violation of data privacy rights and unconstitutional?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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