In re Info. Stored at Premises Controlled by Google, No. 20 M 392

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: GABRIEL A. FUENTES, United States Magistrate Judge
• Citation: 481 F.Supp.3d 730
• Docket Number: No. 20 M 392
• Decision Date: 24 August 2020
• Parties: In the MATTER OF the SEARCH OF: INFORMATION STORED AT PREMISES CONTROLLED BY GOOGLE

481 F.Supp.3d 730

In the MATTER OF the SEARCH OF: INFORMATION STORED AT PREMISES CONTROLLED BY GOOGLE

No. 20 M 392

United States District Court, N.D. Illinois, Eastern Division.

Signed August 24, 2020

481 F.Supp.3d 732

AUSA, Prashant Kolluri, United States Attorney's Office, Chicago, IL, for United States of America.

MEMORANDUM OPINION AND ORDER

GABRIEL A. FUENTES, United States Magistrate Judge

Before the Court is the government's Amended Application for a Google Geofence Search Warrant ("the Amended Application") (D.E. 6). While investigating the suspected theft of prescription medications, the government has developed evidence indicating that an unknown individual ("the Unknown Subject") entered two physical locations to receive and ship the stolen medication at specific times. To try to identify the Unknown Subject, the government wants to know which mobile or smartphone devices that transmit their location information to service provider Google, Inc. ("Google") can be known by Google to have been at those two locations at the times when the Unknown Subject was there. The government has proposed a "geofence" search warrant to obtain Google's historical information about what devices were at those locations at those times.

INTRODUCTION

The idea behind a geofence warrant is to cast a virtual net – in the form of the geofence – around a particular location for a particular time frame. The government seeks to erect three geofences. Two would be at the same location (but for different time frames), and one would be at a second location. The window for each geofence is a 45-minute time period on a particular day. As to each of these geofences, the government proposes that Google be compelled to disclose a list of unique device identifiers for devices known by Google to have traversed the respective geofences. The purpose of the geofences is to identify the devices known by Google to have been in the geofences during the 45-minute time frames around the Unknown Subject's appearances on surveillance video entering the two locations on three occasions. By identifying the cell phones that traversed any of the geofences, the government hopes to identify the person suspected in the theft of the pharmaceuticals, under the theory that at least one of the identified devices might be associated with the Unknown Subject.

The government's application is the third submitted by the government in this investigation. The government's first application ("the Initial Application") was denied by U.S. Magistrate Judge M. David Weisman. See In re Search of Information Stored at Premises Controlled by Google , No. 20 M 297 (D.E. 4) (N.D. Ill. July 8, 2020) (unsealed on July 16, 2020) ("7/8/20 Order"). The second of the three applications, filed in the above-captioned matter

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on July 24, 2020 ("the July 24 Application"), narrowed the geographical scope of the three proposed geofences, drawing them more tightly around the two physical locations where the Unknown Subject was seen entering to receive or ship the stolen medication, and attempting to reduce the number of devices (and persons) identified in the search. The undersigned magistrate judge denied the July 24 Application, relying heavily on Judge Weisman's analysis and finding that the warrant failed to meet the Fourth Amendment's particularity requirement and failed to establish probable cause to seize the location information of device users – unidentified and unknown at the time of execution of the warrant – who could not be shown to be involved in the subject offense. (7/24/20 Sealed Memorandum Opinion and Order ("7/24/20 Order"; D.E. 5).)

In the Amended Application now before the Court, the geographical scope of the geofences is unchanged from the July 24 Application, but the government has altered the proposed search protocol to eliminate the third of the three stages proposed in the first two applications. Those three stages were (1) Google's collection of information it possesses about devices it believes traversed the geofences; (2) Google's production of an "anonymized" list of the unique device IDs for those devices as well as related information including their location coordinates and time stamps; and (3) Google's production of the subscriber information identifying the account holders or users of the devices on the anonymized list, with the government exercising its discretion as to the device IDs for which Google would obtain identifying subscriber information and provide it to the government. Having now eliminated the third stage, the government argues that the proposed warrant in the Amended Application has cured the constitutional infirmities set forth in the 7/8/20 and 7/24/20 Orders because the proposed warrant "does not seek any individual identifying information" and "cannot be used to identify a device's user without further information from Google." (Government's Memorandum in Support of Its Amended Application for Google Geofence Search Warrant ("Gov't Br."; D.E. 10) at 13, 15.) Further, in the Amended Application, the government has amended the description of the information to be seized, in Attachment B to the warrant, by limiting the "anonymized" information to that which "identifies individuals who committed or witnessed the offense." No further methodology or protocol is outlined as to how Google would know which of the sought-after anonymized information identifies suspects or witnesses. The government argues that the proposed warrant's language limiting the "anonymized" information to that which "identifies individuals who committed or witnessed the offense" brings the warrant into compliance with the particularity requirement by limiting the government's discretion "to select device information from among the anonymized lists." (Id. at 17.) The government also added, after an inquiry by the Court, a representation that the government retains the power to obtain by subpoena the identifying subscriber information for any of the device IDs on the anonymized list obtained under the proposed warrant, but that the government would do so only after reviewing the anonymized information. (Id. at 16-17.)

DISCUSSION

According to the Amended Application, Google collects location information data from sources including GPS data, cell-site information, wi-fi access points, and Bluetooth beacons within range of a given mobile device. Google offers an operating system known as Android for mobile devices, and devices using the Android operating system have associated Google accounts. Devices that do not run the Android operating system, such as Apple devices, also

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communicate with Google through Google applications that are available on Apple products. When a device user enables Google's "location services" on an Android device, or a "location sharing" (with Google) feature on a non-Android device, Google collects and retains location data from that device. The location data can show that a certain device was located at a particular place at a particular point in time. From this information, the government can seek to identify the device's user, from information the user may have provided to Google. The Amended Application does not quantify an estimated percentage of all devices that communicate with Google in a manner that would transmit location information to Google, but the Amended Application suggests that a device that does not do so would be a relatively rare case.¹

The Amended Application requires the Court to review carefully the evolution of Fourth Amendment law, from its longstanding probable cause and particularity requirements to its application to modern electronic devices and to the privacy interests our courts have recognized as arising from such devices’ widespread and everyday use.

I. The Fourth Amendment and Its Applicability to the Amended Application

A. The Amended Application Proposes a Search for Fourth Amendment Purposes.

The Fourth Amendment bars unreasonable searches and seizures. U.S. Const. amend. IV. In describing the Fourth Amendment as a protection of people and not places, the U.S. Supreme Court has stated that what a person "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A government intrusion into a person's private sphere qualifies as a "search," triggering the Fourth Amendment requirement that the intrusion be authorized by a warrant supported by probable cause, when that person " ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable.’ " Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2213, 201 L.Ed.2d 507 (2018), quoting Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Supreme Court also has recognized that an intrusion need not be "trespassory" to be considered a search for Fourth Amendment purposes. See United States v. Jones , 565 U.S. 400, 412-13, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (affirming court of appeals decision that required a warrant for a search that tracked an...