Cyrus Farivar, Forbes
For Mia Bonta, a California state legislator, last summer’s Supreme Court decision overturning 50 years of abortion rights in the United States was something of a wakeup call.
That decision, in a case known as Dobbs v. Jackson Women’s Health Organization, created a situation in which abortion could be banned in some states and allowed in others. Since then, the Golden State has doubled down on providing legal abortions for pregnant people: it has advertised the legality of abortion to residents of other states and more recently, has even stocked up on abortion pills.
Dobbs has also caused many activists and legislators in California to re-evaluate the potential threats to digital privacy as they pertain to reproductive health and abortion-related care. For Bonta, the decision pushed her to introduce a state bill, known as AB 793, which would ban the controversial and novel practice of so-called “reverse keyword” and “geofence” warrants. These warrants allow investigators to cast a very wide net, grab a bunch of data — most often from Google — and then narrow it down to find a suspect.
In a reverse keyword search, investigators ask Google to provide the IP addresses of all people that search for a typical set of words or phrases, often a street address. With that IP address, it is relatively easy to identify a suspect by subpoenaing the internet service provider.
For a geofence warrant, investigators order tech firms to provide precise locations of all digital devices within a certain radius during a specific time window. Then, investigators narrow down those devices based on the facts of a criminal incident, and eventually the company provides precise location information that leads to a suspect.
Most of these warrants are targeted at Google, given its vast amount of search and location data. While other companies could conceivably be served with similar warrants, public court records nearly always point to a data request from Google over other companies. (In 2019, Apple told The New York Times that it did not have the ability to perform such geofence searches.)
Critics of the practices, including Bonta, dub these warrants “digital dragnets.” They add that these legal techniques are overbroad as they require combing through data belonging to a huge number of people who have nothing to do with the crime being investigated.
Not only would the proposed legislation, as currently drafted, forbid the practice by California law enforcement, but it would also forbid California-based tech companies like Google from complying with such requests, even if they originate from out of state. Bonta hopes that the bill she’s introduced would help mitigate any ability for California-based tech companies’ data to be weaponized against pregnant people.
“This is a big deal because the best search engine in the world is Google, which is in California,” said Brian Owsley, a law professor at the University of North Texas Dallas, who formerly served as a federal magistrate judge.
While Bonta fears that this practice could be used to target pregnant people, it’s not clear if that has happened. However, tech companies being compelled to provide other kinds of legal assistance in abortion cases is not theoretical. Last year, prosecutors in Nebraska obtained a warrant that allowed them to receive Facebook messages between a mother and daughter who allegedly discussed obtaining and using abortion pills.
“We needed to realize the highest level of privacy and protection in a post-Dobbs era,” the California lawmaker told Forbes.
For its part, California prosecutors said in a recent letter to Bonta that the use of reverse search is a “common means…to help stop the spread of child pornography and exploitation of children.”
The bill comes at a time when courts nationwide are beginning to re-evaluate the validity of the practices. Should the bill pass, California would become the first state in America to ban both.
Google declined to comment.
The search giant has released data showing that its responsiveness to law enforcement for geofence warrants jumped precipitously from 2018 to 2020, the most recent year for which data is available. It has not released comparable data on the use of reverse keyword searches.
“As with all search warrants and data requests, we work to protect the privacy of our users while supporting the necessary work of law enforcement,” the company wrote in August 2021 in a two-page whitepaper.
Legal experts and critics of the practices say reverse keyword and geofence warrants are the modern analogy of “general warrants,” a British colonial-era practice that involved broad physical searching of homes and other locations. The practice was so offensive that it resulted in the implementation of the Fourth Amendment, which protects against “unreasonable searches and seizures.” Similarly, these critics say that pulling a digital trail of every device in a given location is comparable to searching every home on a city block in order to look for a criminal suspect.
“Geofence warrants are just one example of the fact that all of our trails are one warrant away from being revealed,” said Andrew Ferguson, a law professor at American University, whose recent academic paper on the subject likened it to “digital rummaging.”
“Digital technologies change the ease of government access and the ability and scope and scale to aggregate information shifts the ground in the legal space.”
“The warrant permitted identification of numerous individuals with no connection to the murder who were simply still at home.”
California 2nd District Court of Appeal, People v. Meza (2023)
For example, in a 2020 arson and quintuple murder case in Colorado, law enforcement were stymied after the first 23 warrants did not produce any leads. Then, investigators ordered Google to produce digital identifiers of anyone who had searched for the address where the arson occurred during a 15-day window prior to the crime. Eventually, they landed on one of the suspects, Gavin Seymour, then aged 16.
Attorneys for Seymour argued in a January court filing that this search was “unconstitutional” and “overbroad.”
In another case, a 2019 Los Angeles murder, investigators sought location history data for all individuals within a radius of six specific locations during particular time frames. Law enforcement was eventually able to locate the suspects based on the fact that their phones had been seen several times across those multiple locations.
For their part, California state prosecutors say that the use of reverse keyword and geofence warrants are critical to investigating a myriad of crimes and will seriously hamper all criminal investigations.
“The problem with [AB] 793 is that it would really prevent law enforcement from solving countless numbers of cases,” Greg Totten, the head of the California District Attorneys Association, told Forbes.
“This includes finding abducted children, human trafficking. It would have an unprecedented level of impact on key law enforcement tools and strategies.”
He said that while his organization did not track how often the legal method is used, he added that the “[homicide] solve rate is going to drop markedly” if AB 793 is implemented.
Similarly, Jim Cooper, the sheriff for Sacramento County, also said in a recent letter to his state legislator that such warrants are “only sought when all other investigative techniques have been exhausted, and they have been used to solve numerous cases that would have otherwise gone unsolved.” The letter does not state the success rate of the use of these techniques.
Only recently have higher courts started to examine the practice for the first time, and rulings so far have been mixed.
On April 28, a Pennsylvania appellate court found that the use of a reverse keyword search was constitutional in a 2016 rape case. There, the defendant’s attorneys argued that he had a privacy interest in his Google searches, but the court disagreed.
By contrast, earlier in April, a California appellate court found that the approved warrant in the 2019 Los Angeles murder case was “invalid” because “it provided law enforcement with unbridled discretion regarding whether or how to narrow the initial list of users identified by Google,” adding that “the warrant permitted identification of numerous individuals with no connection to the murder who were simply still at home.”
More decisions are coming. On May 4, the Colorado Supreme Court will hear oral arguments in a case that centers on the use of a reverse keyword warrant in the arson and murder case involving a teenaged suspect. Later this year, the 4th Circuit Court of Appeals, in Virginia, is expected to hear oral arguments in a separate geofence case, and will become the first federal appeals court to consider the issue.
Mia Bonta, the California assemblymember, finds both practices objectionable.
“I think about the individual who finds themselves needing to go to a Planned Parenthood or any kind of health clinic and the idea that because they are entering into that space and could be subject to the loss of privacy seems unfathomable to me,” the legislator added.
AB 793 is expected to come to a floor vote in the California assembly this month. So far, the bill has faced no opposition in committees.