OPINION:
The U.S. Supreme Court is hearing a case dealing with geofence warrants, also called reverse warrants — and more aptly so because of the potential for law enforcement to surveil and arrest without a specific warrant naming the person or thing to be searched, a reversal of Fourth Amendment intents — and the end result, depending on how justices rule, could be: police state.
On one side is the government, claiming it needs the warrant power for the good of the public, to secure the safety of the public. On the other side — is freedom, the Constitution and citizens’ rights.
This is how crime-fighting always goes: Police want more power, government demands more authority, law enforcement insists on broader interpretation of the Constitution, and the justification always, always, always is for safety and security, with those opposing the encroachment on their liberties and privacies being peppered with the somewhat hostile and always condescending, “Well, if you’re not doing anything wrong, you have nothing to worry about.”
How about the worry of the government’s ever-intruding expansion into the lives of innocent American citizens?
Here’s the case before the high court: It’s called Chatrie v. United States, and justices will “decide whether broad digital searches violate the Fourth Amendment,” as Liberty Justice Center put it. These are the warrants where government entities go to a private company, usually Google, and demand the release of data from cellphones and other devices for a certain location and for a specific period of time. But this is not generic data. This is data that identifies individuals and tells where they are and at what time — meaning, if you’re standing in the site where the government demands the data, and you’re carrying your cellphone with you, then you will be identifiable to the government.
As The Hill wrote, “The warrants are typically employed by investigators when they know the time and location of a crime but not a suspect’s identity.”
This is the type of warrant used to identify hundreds of attendees of the Jan. 6, 2021, protests on Capitol Hill — the type of warrant that allowed law enforcement to arrest and prosecute more than 1,500.
“Court filings show that a geofence warrant served on Google for a four-and-a-half-hour period of the Capitol attack revealed 5,723 unique devices that the company estimated were or could have been in the geofence,” The Hill wrote.
These are people who — at the time of the issuance of the warrant — haven’t committed any crime; haven’t indicated any intent to commit a crime. That law enforcement can obtain a warrant to identify their attendance flies in the face of a core American concept — that of the right to be regarded innocent until proven guilty.
The use of geofence warrants has skyrocketed in recent years. The Hill reported that in 2016, Google received only a few; by 2018, the company received almost 1,000; by 2020, Google received more than 11,000.
“Geofence warrants [have come] to constitute more than a quarter of all U.S. law enforcement demands,” The Hill found.
The Fourth Amendment, meet paper shredder.
The Founding Fathers detested “writs of assistance,” which were the equivalent of general warrants that allowed the British to carry out overly broad and expansive searches of businesses and homes alike, oftentimes leading to seizures and arrests of the very persons and things totally unaffiliated with the writs. Seek first; arrest second; fill in the blanks of the crime for the court last.
It’s an abominable system used only by the most tyrannical of governments.
Modern government is essentially doing the same, only in digital form.
Just because an American carries a cellphone does not mean the government has the right to track and surveil, using data from that phone, without going the normal Fourth Amendment warrant route.
“Dragnet geofence warrants toss anyone with a phone in their pocket in the same bucket, subjecting the population to systematic invasions of privacy for government convenience,” said Reilly Stephens, director of Amicus Practice at the Liberty Justice Center, in a written statement.
Quite right.
Let’s remember who’s the boss here. American citizens have the right to track government officials’ cellphones — because American citizens are the ones paying those government officials’ salaries and paying for those government officials’ cellphones.
Government officials have no such automatic right to do the same. The Fourth Amendment makes that clear. The Supreme Court must, as well.
• Cheryl Chumley can be reached at cchumley@washingtontimes.com or on Twitter, @ckchumley. Listen to her podcast “Bold and Blunt” by clicking HERE. And never miss her column; subscribe to her newsletter and podcast by clicking HERE. Her latest book, “God-Given Or Bust: Defeating Marxism and Saving America With Biblical Truths,” is available by clicking HERE.
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