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We saw an unprecedented effort by the government to go after those who were at the Capitol on Jan. 6, with the FBI investigating hundreds of people and employing all kinds of tactics to arrest them. Not only did the FBI have informants who were involved, but they also employed some unusual methods.
Among the tactics in their huge investigatory effort was the “biggest-ever haul of phones from controversial geofence warrants, court records show.”
According to a filing in one of the Jan. 6 cases, Google gave up information to the FBI on 5,723 devices that had been in or near the Capitol during the riot. Geofence warrants allowed them to get anyone in the area using digital services. There weren’t that many people who were inside the Capitol. About 900 have been charged. So those warrants were grabbing people who had not been inside the building — they were potentially grabbing information on dissenters and/or random people who were just in the neighborhood.
“We have a rigorous process for geofence warrants that is designed to protect the privacy of our users while supporting the important work of law enforcement,” [Google] said. “When Google receives legal demands, we examine them closely for legal validity and constitutional concerns, including overbreadth, consistent with developing case law. If a request asks for too much information, we work to narrow it. We routinely push back on overbroad demands, including overbroad geofence demands, and in some cases, we object to producing any information at all.”
Now, if it sounds to you like that’s problematically overbroad, that’s what it sounds like to the attorneys of one of the defendants, David Rhine, as well.
Rhine was first flagged to the FBI by tipsters who had heard that he had been inside the Capitol. But investigators only identified him in surveillance footage after they matched it against the precise geofence coordinates of his phone. His lawyer is now trying to get the geofence evidence thrown out on a number of grounds, including that it was overly broad in who it rounded up, and that Rhine had a constitutional expectation of privacy in his Google data.
“The government enlisted Google to search untold millions of unknown accounts in a massive fishing expedition,” the attorneys wrote. “Just a small amount of Location History can identify individuals … engaged in personal and protected activities (such as exercising their rights under the First Amendment). And as a result, a geofence warrant almost always involves intrusion into constitutionally protected areas.”
Wait! I thought we were told when 2000 Mules released that this wasn’t possible? pic.twitter.com/hvbSK2Oy0H
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— Margot Cleveland (@ProfMJCleveland) November 28, 2022
It was funny seeing people on the left cheering this on social media as though “overbreadth” was good because it pertained to Jan. 6. But at least one professor of law gets this isn’t just a problem regarding Jan. 6.
Andrew Ferguson, a professor of law at American University, agrees. “And that worries me because the January 6 cases are going to be used to build a doctrine that will essentially enable police to find almost anyone with a cellphone or a smart device in ways that we, as a society, haven’t quite grasped yet,” he says. “That is going to undermine the work of journalists, it’s going to undermine political dissenters, and it’s going to harm women who are trying to get abortion services.”
No kidding. And it went even further than that, as Prof. Margot Cleveland observes, specifically seeking information on people wholly outside of the Capitol, according to a footnote in the Rhine motion to suppress.
In case you didn’t see this @mkhammer it is actually worse than what @wired highlighted in its article. From footnote 4 of the Motion to Suppress. pic.twitter.com/byeXQdKrsr
— Margot Cleveland (@ProfMJCleveland) November 28, 2022
On what basis are they grabbing people outside of the building, without more? Throwing out such a broad dragnet screams constitutional issues. And they’re doing this in regard to Jan.6 for people not even in the building when, at the same time, they didn’t seem to be able to catch the leadership of people who were attacking the Portland federal courthouse night and night for months. Funny how we keep seeing these differences.
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