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upstart writes:

Geofence warrants that allow law enforcement to collect location data on mobile device users for criminal probes are under attack by civil rights groups and public defenders:

The ACLU and eight federal public defenders are asking the Fourth Circuit Court of Appeals to exclude mobile device location data obtained from Google via a so-called geofence warrant that helped law enforcement catch a bank robbery suspect.

The first geofence civil rights case to reach a federal court of appeals raises serious Fourth Amendment concerns against unreasonable search and seizure related to the location and personal information of mobile device users.

Geofence warrants have primarily been issued for Google to hand over data about every cell phone or other mobile device within a specific geographical region and timeframe. The problem: location data on every person carrying a mobile device in that area is scooped up in a wide net and their data is then handed over en masse to law enforcement.

"These warrants are patently unconstitutional," said Tom McBrien, a law fellow with the nonprofit Electronic Privacy Information Center (EPIC) in Washington DC. "They look through everyone's location history within that geographical area to see where they were at the time."

Geofence warrants violate the Fourth Amendment of the US Constitution on several fronts, McBrien argued. First, the amendment requires that evidentiary warrants meet the "particularity requirement," meaning police must be specific about what and who they're seeking to find with the data. The warrants can't turn into "fishing expeditions," McBrien said.

Secondly, probable cause requires law enforcement to link a specific person or persons to a crime. Only in that case does the law allow the invasion of privacy that comes with geofence data access.

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