Privacy advocates are also watching the case closely, concerned that police could use reverse keyword searches to investigate people who seek information about abortions
BY:
Catherine Nicci
Legal Affairs Analyst / Reporter
PROJECT COUNSEL MEDIA
11 July 2022 (Washington, DC) – A teen charged with setting a fire that killed five members of a Senegalese immigrant family in Denver, Colorado, has become the first person to challenge police use of Google search histories to find someone who might have committed a crime, according to his lawyers.
The pushback against this surveillance tool, known as a reverse keyword search, is being closely watched by privacy and abortion rights advocates, who are concerned that it could soon be used to investigate women who search for information about obtaining an abortion in states where the procedure is now illegal.
In documents filed last Thursday in Denver District Court, lawyers for the 17-year-old argue that the police violated the Constitution when they got a judge to order Google to check its vast database of internet searches for users who typed in the address of a home before it was set ablaze on 5 August 2020. Three adults and two children died in the fire.
That search of Google’s records helped point investigators to the teen and two friends, who were eventually charged in the deadly fire, according to police records. All were juveniles at the time of their arrests. Two of them, including the 17-year-old, are being tried as adults; they both pleaded not guilty. The defendant in juvenile court has not yet entered a plea.
In brief: Denver police, with help from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, turned to the keyword search several weeks after the fire, when they had yet to identify the people caught on security video in masks just before the fire was set.
The keyword search warrant, issued in November 2020, led Google to search for anyone who queried the address of the home that burned in the 15 days before the fire. Google delivered information on 61 queries, according to court filings, along with the IP address — a unique number for each computer on the internet. Investigators focused on a handful of those queries, asking Google to provide detailed user information for them. One of them was linked to the 17-year-old.
From there, investigators examined the teen’s other online activities, including Snapchat, Facebook, Instagram and text messages.
The investigation revealed that the fire was set in a mistaken attempt at revenge against someone who’d stolen one of the co-defendant’s phones, a Denver detective testified last year. After the fire, one co-defendant realized the people killed were not the people he thought stole the phone, the detective said. If it wasn’t for the keyword search warrant, investigators would never have suspected the 17-year-old or his friends.
And that is the hook being used by the lawyers for the 17-year-old. The search, and all evidence that came from it, should be thrown out because it amounted to a blind expedition through billions of Google users’ queries based on a hunch that the killer typed the address into a search bar. That, the lawyers argued, violated the Fourth Amendment, which protects against unreasonable searches:
“The starting point was a search of billions of Google users, and all without a shred of evidence to search any one of them”.
No matter their client is guilty of killing innocent people. His constitutional rights were violated.
The National Association of Criminal Defense Lawyers’ Fourth Amendment Center jumped in on the side of the 17 year old defendant:
“People have a privacy interest in their internet search history, which is really an archive of your personal expression. Search engines like Google are a gateway to a vast trove of information online and the way most people find what they’re looking for. Every one of those queries reveals something deeply private about a person, things they might not share with friends, family or clergy.”
As we noted in a blog post last year, keyword searches have grown increasingly common in recent years, as police have used them to search for suspects in a variety of crimes, including a string of Texas bombings, sexual abuse in Wisconsin and fraud in Minnesota. They differ from traditional search warrants in that police seek them without knowing the name of a suspect; instead, they are seeking information that might lead them to a suspect. Google does not publish data on the number of keyword search requests it receives, and did not respond to a request to provide that information. Nor has Google responded to a flood of requests for comment on the Denver case.
Now that the Supreme Court has overturned Roe v. Wade, privacy advocates and women’s rights groups worry that keyword searches could expand into investigations of illegal abortions in states that have outlawed them. Said Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation:
“Police officers are going to try to investigate people they think are violating those laws. One way of finding that is to ask Google to hand over information on everyone who has searched for a Planned Parenthood in a particular place. If Google is allowed or required to turn over information in this Colorado case, there is nothing to stop a court in a state that has outlawed abortion to also require Google to turn over information on that kind of keyword search.”
The Foundation is filing a brief supporting the 17-year-old’s challenge to the keyword search warrant.
Abortion rights advocates are also concerned about geofence warrants, in which police ask Google to provide information on devices that were near the scene of a crime in order to find a suspect. That tool was found unconstitutional by a judge in Virginia last year, but that ruling doesn’t restrain police in other parts of the country.
Many defense lawyers (not involved in the case) have noted that allowing the government to sift through Google’s vast trove of searches is akin to allowing the government access to users’ thoughts, concerns, questions, fears.
Ah, American justice. It always rests on points of principle and procedure – in this case protection against unreasonable searches, protection from overreach. Meanwhile an innocent family lies dead, and we know who did it. The truth? Not important. What a system. Ah, technology’s impact on societal and judicial structures. That certainly deserves another post.
