youThe first time Caleb Kenyon, a defense attorney in Florida, saw a geofencing order was when a new client received an alarming email from Google in January 2020. Local police were requesting personal data from the client, Zachary McCoy, and Kenyon. I only had seven days. to prevent Google from giving it away, he said the email.
When Kenyon asked Google for more information, he received a copy of the order’s cover letter. It was unlike anything he or any other lawyers in his network had seen before.
The geofence order included a map and GPS coordinates, and instructed Google to provide identifying information for each user whose device was within the radius of that location at a given date and time.
“It was so strange that I didn’t even have a concept of what I was dealing with,” he said.
Kenny is not alone. As tech companies create increasingly sophisticated means of surveilling people and their devices—technology that law enforcement is eager to take advantage of—the legal community is scrambling to keep up.
Public defenders are often the busiest and lowest paid attorneys in the criminal justice system, with little time and few resources to investigate the new technology now being used against their clients. This, in turn, creates an uneven playing field that puts the most vulnerable people at a disadvantage: those who cannot afford private lawyers. That’s where organizations like the National Association of Criminal Defense Lawyers (NACDL), a nonprofit criminal legal defense group of which Kenyon was a member, come in. With an army of experts on call, resource kits, and training, the NACDL helps attorneys navigate the increasingly complex and novel ways their clients’ privacy can be violated in the digital age, including search warrants. geofences and keywords, digital device searches and facial recognition.
The NACDL recently created the Fourth Amendment Center, named for the constitutional right against unreasonable searches. The center is one of the few resources available to help lawyers better understand how new technology is being used against their clients. Defense attorneys and public defenders don’t have much time to go after tech companies like Google for information about how their clients are being monitored, and that’s where the center believes it can provide the most value.
“They don’t have to do all of this themselves,” says Mike Price, the center’s director of litigation. “We can do the work, share that information, and help them raise these issues in their cases in a way that doesn’t take two years.”
Leveling the playing field
Mindful of Google’s looming deadline to turn over information on McCoy’s device, Kenyon turned to the Fourth Amendment Center. He copied the language of the order and posted it on the organization’s online forum.
Price called him almost immediately. “He guided me through it all,” Kenyon said. The geofence order meant that police were asking Google for information about all devices that were near the location of a suspected crime at the approximate time it occurred, Price explained. McCoy’s device must have been one of them. (Google said it rigorously screens law enforcement requests for “legal validity and constitutional concerns” and stressed that location tracking is turned off by default and users can delete their location data at any time.)
Kenyon challenged the order with guidance from Price and the NACDL. The police eventually removed it.
When it comes to challenging these types of requests, the deck is stacked against public defenders and defense attorneys, and consequently their clients.
It can take years for the defense community to take notice of the newer surveillance tools and data tracking methods being used by police, and there is often little transparency. Situations like McCoy’s can be a rarity: Legal requests usually come with gag orders or nondisclosure agreements, meaning the person whose information is requested may not know it for months, let alone contest it. And even when the potential suspect is served, attorneys can find themselves in unfamiliar territory.
One way the Fourth Amendment Center, launched in 2018, works to level the playing field is by partnering with defense attorneys to challenge the ways law enforcement uses technology. When Kenyon first heard Price in 2020, the center’s director of litigation was working with another defense attorney on a case involving a geofencing warrant, which has since become the foundation of the many resources for the court. organization about how these arrest warrants work.
That case, which Price teamed up with a Virginia federal public defender named Laura Koenig – involved a man named Okello Chatrie who was accused of robbing a bank in 2019 after a geo-fence warrant issued to Google placed Chatrie’s device at the crime scene. . When Price and Koenig challenged the validity of the order, and whatever evidence he produced on Chatrie’s behalf, became one of the first geofence orders to be tried in court.
Unlike other search warrants, geofence warrants do not require probable cause or a specific suspect in mind; collect information about anyone in the vicinity of a suspected crime. Proponents argue that this violates the fourth amendment, but it wasn’t until the Chatrie case that the contours of the practice first came to light.
Price and Koenig asked the court to subpoena Google to testify to learn how the company collects location data from users and what it does when requested by the police. This gave lawyers and the public one of the first glimpses into the process. Google testified, for example, that it normally collects location data from devices every two minutes.
The judge ultimately ruled that the geofencing orders are unconstitutional, setting a precedent that would give defense attorneys across the country new grounds to challenge them. However, the judge made an exception in Chatrie’s case, a decision the lawyers hope to appeal later this month.
“It’s one of the reasons we’ve been so involved in the litigation over the geofence orders,” Price said. “There was a complete lack of transparency for a long time, even about their existence, and in the cases where we started to see them, it took years to get information from Google.”
Now, as a result of the Chatrie case, the NACDL has a geofencing starter kit for attorneys that includes questions to ask when one is issued, as well as sample briefs and motions. They also shared transcripts of the Google testimony and copies of the subpoena on their website.
‘How to play Whac-A-Mole’
The organization regularly hosts trainings and webinars that are attended by between 30 and 800 people at a time, according to Jumana Musa, director of the Fourth Amendment Center. Geo-fencing warrants are just one of several issues where the NACDL offers litigation assistance. Others include ShotSpotter, a gunshot detection technology currently used by police to monitor neighborhoods for gun crime; defending clients from potential abortion-related surveillance in a post-Roe world; and how to combat trespassing and kidnapping of digital devices.
Public defenders, who can handle up to 70 or more cases at a time and have fewer resources and time than the prosecution, will benefit most from the NACDL’s services, Musa said. Clients who rely on a public defender because they cannot afford their own attorney are also more likely to be targeted by law enforcement and are predominantly from Bipoc, immigrant, or multi-marginalized communities.
“Often, for the people who are the primary targets of these tools and the criminal legal system, the only person who stands between them and a jail cell is their public defender,” he said.
When Musa first joined the NACDL, the Fourth Amendment Center did not exist. At the time, his work focused on influencing policy changes at the congressional level. The work was slow and incremental, he said, and reform often came with trade-offs that hurt people in the criminal legal system. The hope is that the center will make an impact by helping public defenders and defense attorneys address the challenges posed by new technologies.
Still, your job can feel like playing Whac-A-Mole, Price said. Even as the group identifies and learns new ways to monitor people’s data, the rapid advancement of new technologies outpaces them. “You have to imagine that companies like Google know that if they collect [the data], [law enforcement] will come.”
The NACDL hopes to find a case that it can eventually take to the supreme court to test and challenge the constitutionality of these surveillance mechanisms. In the meantime, he will continue to fight for awareness, one courtroom at a time.
