That visualization, detailed in court filings in Trump’s federal election subversion case in D.C., was created with data from Google. But the tool that has pitted law enforcement investigative priorities against personal privacy concerns soon won’t be so accessible. The company will no longer store location history that was used to identify hundreds of people who stormed the Capitol on Jan. 6 and to prosecute the man those rioters hoped to keep in power.
Since 2016, law enforcement has used geofence warrants to pull information from smartphone owners who use “Google location history,” which regularly records a person’s location through a combination of cell tower, internet protocol, wireless, GPS and Bluetooth data. Police can also approximate locations through pings to cell towers. But the Google data is far more precise — making it possible in many cases, for instance, to discern whether someone was in the Capitol or right outside it.
The use of the data is still under debate. The chief judge in D.C. has yet to rule on a challenge to the geofence warrant from Israel Easterday, an Amish teen from Kentucky who helped rioters breach the Capitol Rotunda by pepper spraying a police officer. The neighboring U.S. Court of Appeals for the Fourth Circuit, which covers Virginia, Maryland and other neighboring states, is weighing whether this kind of warrant is constitutional, with stark disagreement over whether the data collection was voluntary sharing, fascist overreach or something in between.
“In the physical world, we have the scope of what’s allowed in a warrant,” said Orin Kerr, a professor at Berkeley Law who has tracked the legal debate over geofence warrants. “But we don’t have a sense in the open world” of online data.
A Google representative said the change was part of an ongoing effort to give people more control over their data.
Richard Salgado, Google’s Director of Law Enforcement & Information Security for 13 years and a former Justice Department attorney, said that the warrants were seen initially as potentially useful in “exceptional” situations but quickly “evolved into this routine strategy” investigators used even when other techniques were more likely to be effective.
“In the vast majority of cases this turns out not to be a useful technique,” he said. And he said these warrants can “evade oversight” since the government can just withdraw a warrant if the provider objects, thus avoiding a court ruling. Gag rules mean that users will never know their data was searched or exposed. “There is some discomfort that judges don’t really understand the limited value of the searches at the outset, and challenges don’t reach them.”
On Jan. 6 three years ago, the Justice Department sent a letter to Google directing it to preserve a copy of its data as it existed that day. Then two search warrants were sent to the company asking for a list for all devices Google registered in “Location History” as in or around the Capitol that afternoon. The government threw out phones shown as in the building before 12:50 p.m. or after 6:10 p.m., assuming those represented people working inside the Capitol. They also threw out any phone where the margin of error could place the user outside the grounds — unless that person had deleted their location history after the 6th, which the FBI took as a sign of culpability.
After that culling, the Justice Department obtained a court order for Google to “unmask” or name 9,341 users.
Judge James E. Boasberg said at an October hearing in Easterday’s case that he would probably side with the government. But he wanted more information about why so few Capitol staff were identified even though many were in the building: “The numbers need to make more sense.”
The government was following procedures developed by Google after consultation with the Justice Department, according to court records. The company would produce a list of the devices in the area and time requested. If asked, Google would provide more travel history for a smaller group deemed of interest to the government. With a court order, the company would then unmask the users of devices…
Read More: Google location data was used to find Jan. 6 rioters. It’s disappearing.