Google’s Geofencing Stance: an Ode to Apple in 2016
By Michael Mellon
In 2016 Apple faced off with the federal government, who had obtained an order to compel Apple to create software which would allow the Federal Bureau of Investigation (“FBI”) to unlock a cellphone used by a suspected terrorist.[1] The software was needed because Apple had recently redesigned its operating system, making it impossible for anyone to access information stored on one of their devices.[2] The government maintained that the All Writs Act justified the compulsion because it “empower[s] judges to order that something be done, even if the legislative body (here, Congress) hasn’t officially said that it should be.”[3] It further relied on a test established in United States v. New York Telephone Co. concerning the same.[4] Apple was prepared to challenge this, but the issue became moot when the United States Attorney’s Office indicated it had found another means of entry into the phone.[5] This situation may very well have been the inspiration for Google’s recent stance related to mobile devices.
In December of 2023, Google announced that it was modifying its mapping tool to make users’ location history private, thus ending the company’s ability to comply with warrants requesting certain data related to the same. [6] The change was in response to what is known as “geofencing.”[7] Geofence warrants allow the government to seek information about who was within a ““geofence,” [which is] a defined physical area during a specific period of time.”[8] Through such an application, law enforcement can obtain location history, “including: GPS information, Bluetooth beacons, cell phone location information from nearby cell towers, Internet Protocol address information, and the signal strength of nearby WiFi networks” from everyone who was within the geofence.[9] This information can then be used to identify suspects in situations where it may otherwise be impossible.[10] Such warrants are a vital law enforcement tool, but they also raise significant privacy concerns because they collect information from everyone within a geofence, including those not subject to investigation.[11]
In a blog post announcing the change in policy, Google noted “[y]our location information is personal. We’re committed to keeping it safe, private and in your control.”[12] While privacy advocates undoubtedly applaud Google’s new stance, the irony of such a policy coming from a company like Google is not lost on individuals in the industry. As Attorney Jennifer Lynch, the general counsel at the Electronic Frontier Foundation noted, “[i]t’s great that Google is doing this, but at the same time, nobody else has been storing and collecting data in the same way as Google . . . . ”[13] Stated differently, it is difficult to square Google’s monetization of consumer data with their new approach to geofencing, particularly given that Geofence warrants are just that: warrants. They are subject to judicial review and only issue upon a finding of probable cause.[14] Conversely, when Google analyzes a user’s web traffic and other personal information, no such judicial oversight occurs.
This is not to say geofencing is or is not something individuals should be for or against. As stated by University of California Law Professor Orin Kerr, “[g]eofencing has solved a bunch of really major cases that were otherwise totally cold . . . .”[15] Thus, it is an extremely useful tool for law enforcement because it helps bring those to justice who might otherwise never face consequences for wrongdoing. At the same time, it must be recognized that, as indicated by the United States Supreme Court, “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[16] The fact that such an intangible part of the modern individual could reveal a person’s detailed location history–at virtually any time–is unsettling, to say the least.
Whichever side of the fence one falls on in this debate, one thing is clear: it is not over. If the narrowly avoided faceoff between Apple and the federal government is any indication, Google’s modification of its mapping program will be put to the test. It seems likely that, in the future, an application will be made to the courts to force Google to redevelop the software necessary to obtain location information. Only time will tell what the outcome will be.
Michael Mellon is an appellate attorney practicing in the state of New Jersey. He is also currently a part-time student working towards obtaining his L.L.M. in Cyber Law and Data Privacy from Drexel University’s Thomas R. Kline School of Law in Philadelphia, Pennsylvania. For inquiries related to this submission, he may be reached at mm5763@drexel.edu.
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[1] Cyrus Farivar, Habeas Data 28-34 (Melville House, 2018).
[2] Id. at 26.
[3] Id. at 34.
[4] Id. at 28-9 (referencing 434 U.S. 159, 174-75 (1977) (where the Supreme Court considered three factors to determine the appropriateness of issuing an All Writs Act order. Those factors included whether the opposing party was “so far removed from the underlying controversy that its assistance could not be permissibly compelled[, . . . whether] the order place[d] an undue burden on the [opposing party . . ., and whether] the assistance of the [opposing party] was necessary to achieve the purpose of the warrant.”).
[5] Id. at 55.
[6] Davey Alba, Google Will Stop Providing Law Enforcement Data on Which Users Were Near a Crime, TIME (Dec. 14, 2023) https://time.com/6539416/google-location-history-data-police/.
[7] Ibid.
[8] NACDL, Geofence Warrant Primer, NACDL https://www.nacdl.org/getattachment/816437c7-8943-425c-9b3b-4faf7da24bba/nacdl-geofence-primer.pdf (last visited Mar. 10, 2024).
[9] Ibid. (citations omitted).
[10] Ibid.
[11] Joanna Putman, Google announces it will revoke access to location history, effectively blocking geofence warrants, POLICE1 (Dec. 18, 2023, 12:47PM) https://www.police1.com/warrants/google-announces-it-will-revoke-access-to-location-history-effectively-blocking-geofence-warrants.
[12] Marlo McGriff, Updates to Location History and new controls coming soon to Maps, THE KEYWORD (Dec. 12, 2023) https://blog.google/products/maps/updates-to-location-history-and-new-controls-coming-soon-to-maps/.
[13] Alba, supra.
[14] See U.S. Const. Amend. IV.
[15] Putman, supra.
[16] Riley v. California 573 U.S. 373 (2014).