Effort to curb police use of Google data backfires as California lawmakers struggle to protect abortion seekers

After a man was shot dead outside a bank in Paramount in 2019, Los Angeles County Sheriff’s detectives turned to Google for help identifying the suspects.

Through a search warrant, detectives directed the tech giant to provide cellphone location data for people who were near places the man had visited on the day he was killed. Data provided by Google eventually led detectives to two suspects who are now in prison for murder.

But the demand for Google location data by law enforcement, known as “geofence warrants,” also raised concerns that the requests violated suspects’ constitutional rights. This year, a California appeals court upheld the murder conviction, but ruled that the warrant violates the Fourth Amendment, which prohibits unreasonable searches and seizures, because it was too broad and could potentially kill thousands of people.

The People v. Meza case highlights a central tension over the growing use of geofence warrants: Law enforcement leaders view Google location data as essential to solving crimes, but civil rights groups fear such warrants will violate the privacy of innocent bystanders. Recently released data shows that the number of geofence warrants Google reports received from US law enforcement has increased from 982 in 2018 to 11,554 in 2020.

Concerns about the controversial law enforcement tool grew after the Supreme Court struck down the constitutional right to abortion last year. As states ban or restrict abortion, civil rights groups fear that law enforcement could use Google data to discover whether a woman planned to end her pregnancy illegally. Although abortion is legal in California, advocates worry that officials in states that ban abortions could use geofence warrants to track people who come here for the procedure.

These privacy concerns caught the attention of Assembly member Mia Bonta (D-Alameda), who introduced legislation to ban warrants that compel tech companies to reveal the identities of people who were in a certain location at a particular time or searched for keywords online. The original version of the bill would have banned all geofence warrants, but it was introduced as part of a package of bills aimed at strengthening California as a sanctuary for abortion seekers.

“Frankly, this is a terrible moment for us in terms of the amount of information accessible to a third party,” Bonta said in an interview.

The legislation, AB 793, received support from privacy advocates, reproductive rights groups, Google and the trade association TechNet. But the effort fizzled out this year in the face of vigorous opposition from law enforcement as lawmakers struggled to figure out how to craft a bill that would shield people seeking abortions and allow police to use geofence warrants to investigate crimes.

“It’s become quite clear that there could be unintended consequences based on the way that language was presented,” said Bonta, who promised to focus the bill on gender-affirming care and abortion access and try to get it passed next year. “We wanted to make sure it was just right.”

The bill would face a major hurdle in passage because it could replace a law passed by voters in 1982, which requires two-thirds support of the state legislature.

Opponents said the bill was too broad and would hinder law enforcement’s ability to investigate crimes.

Ventura County Prosecutor Michelle Kontois, speaking on behalf of the California District Attorney’s Association, said law enforcement officials are not opposed to protecting patients who are coming to the state for abortions or gender-affirming care. But he said, banning all geofence warrants is a “real encroachment”.

“I think there are some crimes that will never be solved,” he said. “When we’re using them, it’s because we think it’s the best way to get what we need in this case.”

Privacy advocates and abortion activists question whether the data requests are really necessary because geofence warrants can include information about people who are not potential suspects. The Electronic Frontier Foundation called on Google to oppose compliance with these controversial warrants in 2021. Google says it collects data about a user’s location history for advertising and to improve the company’s services.

The debate in Sacramento forged an unusual alliance between tech giants and privacy advocates. In May, Google sent a letter to lawmakers stating that it supports AB 793. The company said it would work with law enforcement to reduce the warrant if it is asked for too much data.

Rebecca Prozan, Google’s West Coast region director for government affairs and public policy, wrote in the letter, “Most law enforcement demands target one or more specific accounts. In contrast, geofence warrants request information about users who have been in a particular location at a particular time. As such, these warrants raise concerns about whether they disallow innocent users.”

Last year, a coalition of tech giants, including Google, supported a bill in New York that would bar searches for geolocation and keyword data, although it did not pass the Legislature.

Data reported to the California Department of Justice shows that geofence warrants have been used in various criminal investigations this year, including a serious hit-and-run in San Diego and a murder in Riverside. California authorities have also used geofence warrants to investigate murders and other crimes committed by the Mexican Mafia. The FBI used Google data to find out who was inside the US Capitol during the January 6, 2021, riot.

Geofence warrants were also used to identify people protesting the police killings of George Floyd in Minnesota and Jacob Blake in Wisconsin. Sometimes, people fall for their bluff and end up at the wrong place at the wrong time. In one case, an innocent man in Florida became a burglary suspect in 2019 after riding his bike past a burglarized home.

District attorneys say California’s laws do enough to protect people’s digital privacy. Geofence warrants generally involve three steps. In the first, Google gives anonymized information to law enforcement based on the geographic area and time frame specified in the warrant. By using larger data sets, law enforcement limits the devices that authorities may want to examine before requesting Google to provide identifying information such as phone numbers, emails and names, according to the bill’s analysis.

“It’s just us intentionally not asking Google and Google giving us everybody’s information,” said Kontois of the District Attorney’s Association. “It’s not until we’ve gone through several stages, and convinced the judge at each stage of probable cause, that we can perhaps obtain identifying information and names.”

California Police Chiefs Association. did not respond to a request for comment. It was one of several law enforcement agencies that opposed the bill, including the Los Angeles County Sheriff’s Department.

Hayley Tsukayama, senior legislative activist at the Electronic Frontier Foundation, which pushed the bill, said that AB 793 proposes to ban all geofence warrants because there were concerns that the more targeted law would have loopholes that could result in law enforcement having to identify abortion seekers. It is difficult to reduce the bill for some reasons, he said.

“I’m not saying we can’t do it,” she said. “We needed more time than this session to do it.”

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