What is Geofencing and why should people care about it?
Geofencing is a method used to gain knowledge about who is in a given area for specific amounts of time using GPS, RFID, Wi-Fi, or cellular data. I refer to the use of Geofencing as a methodology because it is not one specific technology, but the use of different technologies. Invasive technologies such as Facial Recognition Technology can be added to the list of technologies already used. Anytime a technology is used without the knowledge or the consent of people there should always be concern, if not an outright objection.
What are different applications of Geofencing?
There are box stores businesses that use Geofencing to know who the customers are in their stores, and to figure out which items a customer is interested in. Geofencing is used by pet owners to know if a pet left their property. Parents may want to use Geofencing to know if their children have roamed to places they aren't supposed to go. If a parent suffers from Alzheimer’s, the caregiver or adult children may want to use Geofencing to make sure the parent has not wandered off. Countries are using Geofencing for the purpose of making sure individuals are quarantining as required during the COVID pandemic. Law enforcement has a growing interest in the use of Geofencing.
Are there constitutional issues when law enforcement uses Geofencing?
There are many constitutional issues regarding 4th Amendment protections, and I believe, 1st Amendment issues as well. The Harvard Law Review did an excellent analysis of law enforcement’s use of Geofencing. The article published by the Harvard Law Review is titled Geofence Warrants and the Fourth Amendment. https://harvardlawreview.org/2021/05/geofence-warrants-and-the-fourth-amendment/
The Constitutional Alliance has been observing U.S. courts giving greater latitude to law enforcement when approving warrants allowing them to track individuals, either in real time or based on archived surveillance video footage. Although there have been United States lower court rulings finding Geofencing warrants unconstitutional, this is an area of law that is not fully settled yet which is why people all over the world need to understand what Geofencing is and how it violates basic human rights.
An example of how law enforcement can and/or has used Geofencing?
I like to use examples as learning tools. For education sake let us say there was a bank robbed wherever you live. Unless law enforcement catches the bank robbers in the act, the police would want to use Geofencing to determine who was in the area of the bank at the time of the robbery and be able to track the people around the robbery so the police can hopefully catch up with the culprits.
We would want those criminals captured but at what cost? If it means collecting all the Personal Identifiable Information of people within five square miles of the bank for a period of twenty-four hours, would that seem reasonable to you? Keep in mind the different tools that used to collect the information about who was in the area. GPS, RFID, Wi-Fi, or cellular data are tools already used and as I suggested earlier, we should expect invasive technologies such as Facial Recognition Technology to be added to the toolbelt going forward.
There could be hundreds if not thousands of people caught up in the net who were within five miles of the bank when the bank was robbed. That means each person becomes a potential suspect. In the scenario described above a person could have their movements tracked for twenty-four hours. If the police investigating the case could believe the bank robbers were casing the bank for days before the robbery, officers may want the information for the days preceding the robbery further widening the net. And once a court approves a Geofencing warrant, investigators may find information revealing other potential crimes that may have taken place within the time and distance constraints of the Geofencing warrant approved by the court.
Wouldn’t the police just focus on catching the people who robbed the bank?
You would think so, but we must learn from history. The NSA (National Security Agency) monitors all electronic and/or digital communications for terrorist activity or at least that is their mission. We know when the NSA found evidence of other potential crimes not related to terrorism the evidence was provided to other agencies such as the DEA (Drug Enforcement Administration) and the FBI (Federal Bureau of Investigation). Further, we know that evidence provided to the DEA was given to state and local law enforcement culminating in state or local law enforcement bringing charges against individuals. https://theintercept.com/2018/01/09/dark-side-fbi-dea-illegal-searches-secret-evidence/
In short, when an agency or department collects data whether the agency or department is local, state, or federal the data is often shared with other agencies, and departments at the local, state, and federal level. There is even a specific mechanism in place for sharing of information at the local, state, and federal level. https://www.hsgac.senate.gov/imo/media/doc/10-3-2012%20PSI%20STAFF%20REPORT%20re%20FUSION%20CENTERS.2.pdf
Fusion Centers are manned by local, state, and federal law enforcement officers and were created for the sole purpose of sharing information from the top down, federal to state to local law enforcement, and later from the bottom up, local to state to federal law enforcement. Originally the public was told Fusion Centers would focus on terrorist activity. We now know that was not and is not the case. Fusion Centers collect and share information about many different suspected and actual crimes; some based on anonymous tips. https://www.brookings.edu/blog/fixgov/2015/03/17/fusion-centers-whats-working-and-what-isnt/
In the United States defendants have a right to know how evidence is collected, who collected the evidence, and with whom the evidence was shared. Everything regarding evidence is important to the defendant and their lawyer(s). Knowing the chain of custody of evidence is a fundamental precept to the rights of citizens to assure that the individual’s constitutional rights are not violated.
In the example of the NSA sharing information with the DEA that was, in turn, shared with state and local law enforcement, the officers that made the arrest of the individual(s) did not tell the prosecutor, defense counsel, or the court where and how the evidence used to make the arrest originated or how it was collected. https://www.hrw.org/report/2018/01/09/dark-side/secret-origins-evidence-us-criminal-cases
The Constitutional Alliance believes Geofencing is not just an attack of the 4th Amendment rights of citizens which protect against unreasonable search and seizures but also the 1st Amendment rights of people. Can you explain why are the 1st Amendment rights threatened?
In the United States domestic terrorism is considered a greater threat than foreign terrorism. It seems like or might be the case that everyday somewhere in the U.S. there is a protest or rally about something such as protecting the rights of people or to support or oppose candidates for office.
We know that law enforcement is monitoring lawful rallies and protests using invasive technologies. Granted some of these events go from lawful to unlawful but the point is the events are being monitored regardless. People have a reasonable belief that law enforcement is collecting data about the people who lawfully protest or attend political rallies. Geofencing mission creep can lead to collecting data that was supposed to be about a crime such as a bank robbery, but actually used to know who attended rallies or protests.
It is the monitoring and collection of data that creates a 'chilling effect' on people exercising their basic constitutional rights to peacefully assemble and free speech. Simply put, there has been an erosion of trust between many people in the public and law enforcement. We do not know what happens to all the data collected from a Geofencing warrant. We do not know how long data not related to the warrant is kept or whom the information is shared with.
Is there anything else?
Yes, there has been a win, but that win will certainly be appealed:
The Constitutional Alliance supports law enforcement. We want to see trust regained by law enforcement and to that end, we support civilian oversight boards for local police. We want to see state legislatures performing their role of oversight by holding open hearings where issues such as Geofencing are discussed and we want the same for open hearings for Congress and federal law enforcement. Also, there should be local townhall meetings held at least twice a year where local law enforcement leadership fields questions from citizens.
he Constitutional Alliance is working on a paper to examine the changing relationship between people and governments all over the world while emphasizing the role technology plays in the evolving relationships. Readers can visit the Constitutional Alliance web-site by going to constitutionalalliance.org
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