Lawmakers say the overly broad surveillance tool poses a major threat to reproductive privacy
Tonya Riley, CyberScoop
A California lawmaker on Monday introduced a bill that would put an end to digital dragnet warrants that could be used to surveil individuals seeking reproductive health services and gender-affirming care.
“With states across the country passing anti-abortion and anti-trans legislation, it’s vital that California shore up our protections against digital tracking of vulnerable people seeking healthcare,” said Democratic Assemblymember Mia Bonta, who introduced the bill. “This legislation will put a stop to unconstitutional “reverse warrants” – preserving our digital privacy and protecting Californians’ right to live life on our own terms.”
If passed, the legislation would be the first in the country to outlaw reverse location and keyword warrants, which allow law enforcement to request that tech companies provide data of any individuals at a certain location or whether the person was searching for a specific keyword at a specified time.
So-called “reverse” warrant searches have sky-rocketed in recent years, raising concerns from civil liberties groups and tech companies that see them as unconstitutionally broad and overly invasive. Experts say it’s just a matter of time until law enforcement uses the tools to go after individuals seeking abortions and gender-affirming care in states where those practices are banned.
“Just [based on] the way that we’ve seen these warrants used in the past and other investigations, we’re really worried that they’re going to be weaponized against these communities and that motivated police are going to find a way to get information that really should be protected,” said Hayley Tsukayama, a senior legislative activist at the Electronic Frontier Foundation, one of more than 25 groups supporting the bill, including ACLU California Action and NARAL Pro-Choice.
The bill also has the support of Google, which has supported similar legislation previously introduced in New York.
The new legislation builds on a package of bills California passed last year to make the state a data safe-haven for abortion seekers. The legislation would prevent California law-enforcement agencies and companies headquartered in California from responding to out-of-state law enforcement requests for data about abortions performed in California. It also builds on legislation passed last year barring California law enforcement from complying with out-of-state subpoenas seeking health or other information in an effort to criminalize individuals who have come to California for gender-affirming care.
However, geofence warrants provide an easy loophole around those protections. For instance, law enforcement could request location information from the street in front of the clinic instead of the clinic itself, explained Becca Cramer-Mowder, a legislative advocate at the ACLU California. Such broad search requests make it difficult for tech companies to know if law enforcement may be seeking information violating reproductive health privacy.
“Oftentimes when we’re thinking about a police investigation, it’s trying to find the needle in a haystack. What these reverse demands are returning instead of a needle in a haystack is a haystack that might not even have the needle in it,” said Cramer-Mowder.
According to Google’s most recent publicly available data, between 2018 and 2020 California led the nation in “geofence” warrant requests to Google, sending 3,655 in that time period. The next two leading states were Texas (1,825) and Florida (1,518) recently outlawed abortion. Because tech companies voluntarily disclose such warrant requests, it’s difficult to get a full picture of the extent of the problem, says Tsukayama.
Assemblymember Mia Bonta introduced legislative findings supporting the bill on Monday and intends to release the full bill text in the coming weeks.
Legislation banning geofence and keyword search warrants was included in a set of recommendations offered in December by the state’s Future of Abortion Council, a state-convened committee steered by reproductive health organizations and California’s Senate President. While the bill was introduced as a measure to ensure California’s status as a safe haven for “protecting reproductive and LGBTQI rights and safety,” it would also provide protections for other marginalized groups targeted by reverse warrants, such as individuals protesting police violence.
Courts have taken up the issue, too. Last year, a federal court held that a geofence warrant used to identify devices surrounding the area of a bank robbery was unconstitutional. In January, the Colorado Supreme Court agreed to review a case in which a trial court denied a challenge to suppress a keyword search warrant.