A district court judge in Minnesota recently granted a warrant requiring Google to turn over the personal information of all users who Google-searched the name (or variations thereof) of an Edna, MN, resident. This person was allegedly victim to an attempted ID and credit theft.
The warrant, however, is breathtaking in scope: It demands Google to help police determine who searched for the victim's name between December 1 of last year through January 7, 2017 (approx. 5 weeks). To elaborate,
- the application for the search warrant asks for "[a]ny/all user or subscriber information related to the Google search[] [in question] . . . [f]or the timeframe of December 1st, 2016 thru January 7th, 2017" including "the specific date/time the searches took place";
- the requested information can also include, but is not limited to: "name(s), address(es), telephone number(s), dates of birth, social security numbers, email addresses, payment information, account Information, IP [internet protocol] addresses, and MAC [media access control] addresses of the person(s) who requested/completed the search."
Translated into simpler terms, this means I could one day find myself vulnerable to police investigation simply by virtue of Googling, on a whim, Samantha from third grade.
Investigators are targeting Google because an online photo of the victim turned up on the fake passport that was used to trick a credit union into fraudulently transferring money out of the victim's account. The warrant application states that a Google search revealed the same photo that was used on the fake passport. Regardless of the possible merits of investigators' assertions, search warrants must be based on probable cause, not just mere conjecture.
Many privacy advocates are concerned, and rightfully so:
- “This kind of warrant is cause for concern because it’s closer to these dragnet searches that the Fourth Amendment is designed to prevent,” law professor William McGeveran tells StarTribune.
- A spokesperson for Google states: "We will continue to object to this overreaching request for user data, and if needed, will fight it in court. We always push back when we receive excessively broad requests for data about our users.”
- ArsTechnica calls the warrant "perhaps the most expansive one we've seen unconnected to the U.S. national security apparatus."
- “I’m rather skeptical of this warrant’s ability to survive constitutional scrutiny,” says Stephanie Lacambra, an attorney for the Electronic Frontier Foundation.
Indeed, the externalities flowing from this warrant--i.e, the severe intrusion into a large swathe of peoples' private lives--is highly disproportionate to the state's interest in solving this sub-$30,000 crime. From a cost-benefit standpoint, the scope of the warrant is, well, unwarranted.
If unchallenged, this warrant could open the door for similar warrants and, in turn, produce a widespread chilling effect on online free speech. Consider the following: If personal Google searches are generally known to be vulnerable to investigative probing, then it is likely that people will exercise ex-ante restraint when making such searches online. In the aggregate, this will only decelerate the dissemination of knowledge and ideas, compromising the spirit of the open web. To skeptical readers who have made it this far: Such an outcome is not outside the realm of possibility. A study by Jonathon W. Penny, published in the Berkeley Technology Law Journal, suggests that traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users significantly declined after widespread publicity of Snowden's revelations about NSA/PRISM surveillance. This warrant, then, is improperly exacting--a step towards an Orwellian future in which using a search engine can suddenly transform a person into the object of a search warrant.
Online searching without restraint is a prerequisite to a free and open internet--it enables collaboration and access to knowledge for all. This warrant, if successful, will signal a troubling acceptance of thought policing, which patently contradicts our First-Amendment right to freedom of speech and expression.
In a similar vein, we must also consider the scenario in which Google elects to comply with investigators right from the outset. At present, there is nothing in the law that could stop Google from voluntarily sharing much of the requested information with law enforcement. Under the third-party doctrine--a rather ugly blemish on Fourth-Amendment jurisprudence--those who voluntarily share information with third parties (including corporations like Google) are thought to have no cognizable expectation of privacy as to that information.*
Clearly, then, there is much to be desired when it comes to American privacy law.
*For a deep-dive into the consumer privacy implications of the "Internet of Things," click here.