Reverse Warrants Show Feds Sought Data On Thousands Of Police Brutality Protesters In Kenosha, Wisconsin

from the it's ok! the NSA said this was cool and legal! dept

Is there anything law enforcement won’t use geofence warrants for? The answer appears to be “no.”

A recent Google transparency report shows exponential growth in the geofence (a.k.a. “reverse“) warrant market, one that Google has inadvertently cornered by collecting more GPS info than any of its competitors. These aren’t traditional warrants. Traditional warrants use probable cause to justify searches of places, people, and objects (like vehicles).

“Reverse” warrants are just that: a dragnet cast by cops to find a suspect in a pool of possibilities, most of whom are not criminals. Working backwards from a long list of GPS data points and cellphone information, investigators try to find the most likely suspect and then move forward again, this time using some actual probable cause. They’re not always correct. And they seem largely unconcerned that demanding location data on hundreds, if not thousands, of innocent people perverts the process.

A recent report by Russell Brandom for The Verge shows the trend towards bulk collection continues. And, as reported previously, it involves federal agents who want to convert state charges to federal charges (using imaginative readings of the phrase “interstate commerce” to do so) to generate as much pain as possible for people who participated in protests against police violence, whether lawfully or not.

Protests in Kenosha, Wisconsin following the shooting of a black man by police quickly turned violent. Not only were businesses burned and destroyed, a 17-year-old interloper named Kyle Rittenhouse convinced his mom to drive him to Kenosha from his home in Antioch, Illinois. Once there, the armed Rittenhouse engaged in his vigilante fantasies, shooting three protesters, killing two of them.

The ATF was more interested in the arson, though. And it thought the best way to generate investigative leads was to gather information on thousands of protesters, almost every one of which did not start any fires.

A series of six newly unsealed warrants (1 2 3 4 5 6), some previously reported by Forbes, show a persistent effort to use Google’s location services to identify Android users in the vicinity of arson incidents.

Issued in quick succession on September 3rd, the warrants came from a team of 50 arson investigators from the bureau of Alcohol, Tobacco and Firearms, deployed to Kenosha to prosecute property damage cases connected to the protests. Using the warrants, The agents targeted seven different geographical zones, asking to identify anyone located within that area during a span that could stretch as long as two hours. The result was a kind of location dragnet, spread over some of the busiest times and locations in the first days of the protest.

The government wants haystacks. It firmly believes it can find needles. And it thinks it can do that often enough and with enough certainty no innocent hay will be treated like a criminal needle. That’s insanely arrogant. The more data points you have, the more chances you have of picking the wrong one.

But maybe it really doesn’t matter in these cases. After all, the DOJ and its components have proven more than happy to inflict collateral damage on protesters unhappy with the current state of law enforcement. If this ends in a few bogus arrests, does it really matter?

It might matter to the courts. A few judges have blocked these warrants, calling them vague and unconstitutional. And courts might be receptive to the arguments of those wrongfully arrested as a result of the use of these “reverse” warrants. The only probable cause the government has when it issues a geofence warrant is that it’s likely Google houses the information it wants to collect. But it needs more than that. If all the government needed was the solid assumption a non-party/non-suspect possessed information it wanted, warrants could be completely unmoored from criminal investigations and used to grab any information the government has an interest in.

Those are legitimate concerns. Unfortunately, law enforcement doesn’t share these concerns.

[One] warrant looks at a suspected arson of the Kenosha Public Library, based on lighter fluid and rags that were discovered in a northeast window well alongside minimal fire damage. Without direct witnesses to the fire, police set a two-hour window and a geofence covering the middle third of the downtown’s largest public park space. It was a significant span of time on the busiest night of the protest in an area that provided a natural meeting place for anyone who had taken to the streets that night.

I guess the ATF sees no harm in potentially rounding up several innocent protesters and subjecting them to facetime with federal agents — federal agents who, by the way, can ring people up on charges simply for lying to them. The only thing standing between these warrants and some pretty ugly — but inevitable — outcomes is the courts. Google can anonymize information as much as possible, but follow-up demands are predicated solely on investigators’ beliefs that they’ve found criminal suspects. How accurate those hunches are won’t be discovered until they’re in possession of identifying info — info that can be traced back to the original dragnet supported by nothing more than the assumption grabbing all this data will allow investigators to continue their investigations.

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Comments on “Reverse Warrants Show Feds Sought Data On Thousands Of Police Brutality Protesters In Kenosha, Wisconsin”

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44 Comments
Anonymoussays:

Re: Re:

[This link]https://harvardlawreview.org/2021/05/geofence-warrants-and-the-fourth-amendment/) might help.

Part II begins with the threshold question of when a geofence search occurs and argues that it is when private companies parse through their entire location history databases to find accounts that fit within a warrant?s parameters. As a result, geofence warrants are general warrants and should be unconstitutional per se.

Tanner Andrewssays:

Re: Re:

I think I explained once already:

What Google is getting is what we used to call a general warrant: give us info on everyone whose phone was in the area, whether or not they were actually in position to commit the act under investigation. That is not readily distinguished from the old general warrant to search everyone who passes by such a location.

Anonymoussays:

Is there anything Tim Cushings say to embarrass himself?

Tim Cushings isn’t a real journalist. But he likes to pretend he is. So he opens his one-page articles with narrow-minded, condescending statements that portray himself as intelligent when he’s not.

Law enforcement professionals are problem solvers. Obviously, Tim Cushings and Techdirt in general authors of articles, including Mike Masnick aren’t problem solvers. I’ve read very few articles on Techdirt over the past few years that are worth reading. Now, it seems, Techdirt has thrown out any ounce of integrity that they have ever had just to write trash articles.

Anonymoussays:

Is there anything Tim Cushings say to embarrass himself?

Tim Cushings isn’t a real journalist. But he likes to pretend he is. So he opens his one-page articles with narrow-minded, condescending statements that portray himself as intelligent when he’s not.

Law enforcement professionals are problem solvers. Obviously, Tim Cushings and Techdirt in general authors of articles, including Mike Masnick aren’t problem solvers. I’ve read very few articles on Techdirt over the past few years that are worth reading. Now, it seems, Techdirt has thrown out any ounce of integrity that they have ever had just to write trash articles.

Ockham's Stubblesays:

Distinct from Jan 6 geofencing?

It seems like a key difference to note between the Kenosha warrants and the Jan 6 riot/insurrection is that in the latter case, a geofenced general warrant could be defended, if the geofence could be precise enough to sort trespassers from those who didn’t enter Capitol grounds. (I read news reports suggesting the use of micro cells inside the building, allowing very precise location tracking.) Very much not the case in the Kenosha warrants.

(I would even say that the pipe bomber on Jan 5th is importantly different: while any warrants there might be broader than Jan 6, they still have some PC and specifying info to restrict the geofence through security cam footage. Plus, there are fewer innocent bystanders at the relevant time. Much smaller, and more well-defined and reasonable haystack.)

Ockham's Stubblesays:

Distinct from Jan 6 geofencing?

It seems like a key difference to note between the Kenosha warrants and the Jan 6 riot/insurrection is that in the latter case, a geofenced general warrant could be defended, if the geofence could be precise enough to sort trespassers from those who didn’t enter Capitol grounds. (I read news reports suggesting the use of micro cells inside the building, allowing very precise location tracking.) Very much not the case in the Kenosha warrants.

(I would even say that the pipe bomber on Jan 5th is importantly different: while any warrants there might be broader than Jan 6, they still have some PC and specifying info to restrict the geofence through security cam footage. Plus, there are fewer innocent bystanders at the relevant time. Much smaller, and more well-defined and reasonable haystack.)

restless94110says:

Confused

I am confused. I know that there were rioters that destroyed property and people in Kenosha last year. It was just after another black man resisted arrest and acted violent, something that no one does who wants to survive an encounter with the police anywhere on earth.

I can’t remember when and where there were simple "protesters" and most especially any incident of police "brutality."

Rioting and destruction are crimes. If they have innovative and effective ways of arresting, charging, convicting rioters who destroy property? Who on Earth would not be for that?

restless94110says:

Confused

I am confused. I know that there were rioters that destroyed property and people in Kenosha last year. It was just after another black man resisted arrest and acted violent, something that no one does who wants to survive an encounter with the police anywhere on earth.

I can’t remember when and where there were simple "protesters" and most especially any incident of police "brutality."

Rioting and destruction are crimes. If they have innovative and effective ways of arresting, charging, convicting rioters who destroy property? Who on Earth would not be for that?

Anonymoussays:

Re:

[This link]https://harvardlawreview.org/2021/05/geofence-warrants-and-the-fourth-amendment/) might help.

Part II begins with the threshold question of when a geofence search occurs and argues that it is when private companies parse through their entire location history databases to find accounts that fit within a warrant’s parameters. As a result, geofence warrants are general warrants and should be unconstitutional per se.

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