According to an article, Google Geofence data was used to identify more than 5,000 devices near the Capitol during the January 6, 2021 attack.

According to Wired (A Peek Inside the FBI’s Unprecedented January 6 Geofence Dragnet, written by Mark Harris – hat tip to Sharon Nelson’s excellent Ride the Lightning blog for the initial coverage), a filing in the case of one of the January 6 suspects, David Rhine, shows that Google Geofence data initially identified 5,723 devices as being in or near the US Capitol during the riot. Only around 900 people have so far been charged with offenses relating to the siege.

The filing suggests that dozens of phones that were in airplane mode during the riot, or otherwise out of cell service, were caught up in the trawl. Nor could users erase their digital trails later. In fact, 37 people who attempted to delete their location data following the attacks were singled out by the FBI for greater scrutiny.

Geofence search warrants are intended to locate anyone in a given area using digital services. Because Google’s Location History system is both powerful and widely used, the company is served about 10,000 geofence warrants in the US each year. Location History leverages GPS, Wi-Fi, and Bluetooth signals to pinpoint a phone within a few yards. Although the final location is still subject to some uncertainty, it is usually much more precise than triangulating signals from cell towers. Location History is turned off by default, but around a third of Google users switch it on, enabling services like real-time traffic prediction.

The geofence warrants served on Google shortly after the riot remained sealed. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to suppress the geofence evidence. The motion, which details the warrant’s process and scale, was first reported by journalist Marcy Wheeler on her blog, Emptywheel.

The judge is likely to rule on Rhine’s motion in December, with his trial scheduled for late January 2023. While that will decide Rhine’s fate, it is unlikely to settle the question of geofence warrants more broadly. The Wired article has much more about the issue, including Google’s three-step process for geofence warrants to narrow their scope to only those most likely to be guilty of a crime.

I wrote about the benefits and pitfalls of geofence warrants here last year and also covered a ruling earlier this year where a geofence warrant was ruled unconstitutional in a Virginia case. Seems like we’re in for a long battle on the law enforcement benefits vs. privacy concerns, with Google Geofence data at the center of that battle.

So, what do you think? Should law enforcement agencies be allowed to use geofence warrants, or are they violations of privacy rights?  Please share any comments you might have or if you’d like to know more about a particular topic.

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