Google Provided DOJ Location Data for Nearly 5,800 Devices at U.S. Capitol on J6

Geofence search warrants are intended to locate anyone in a given area using digital services. Because Google’s Location History system is both powerful and widely used, the company is served about 10,000 geofence warrants in the US each year. Location History leverages GPS, Wi-Fi, and Bluetooth signals to pinpoint a phone within a few yards. Although the final location is still subject to some uncertainty, it is usually much more precise than triangulating signals from cell towers. Location History is turned off by default, but around a third of Google users switch it on, enabling services like real-time traffic prediction.

The geofence warrants served on Google shortly after the riot remained sealed. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to suppress the geofence evidence. The motion, which details the warrant’s process and scale, was first reported by journalist Marcy Wheeler on her blog, Emptywheel.

In a statement, a Google spokesperson defended the company’s handling of geofence warrants.

“We have a rigorous process for geofence warrants that is designed to protect the privacy of our users while supporting the important work of law enforcement,” the company said. “When Google receives legal demands, we examine them closely for legal validity and constitutional concerns, including overbreadth, consistent with developing case law. If a request asks for too much information, we work to narrow it. We routinely push back on overbroad demands, including overbroad geofence demands, and in some cases, we object to producing any information at all.”

Google requires a three-step process for geofence warrants to narrow their scope to only those most likely to be guilty of a crime. In the first and broadest step, the FBI asked Google to identify all devices in a 4-acre area, including the Capitol and its immediate surroundings, between 2 pm and 6:30 pm on January 6. Google initially found 5,653 active devices that “were or could have been” within the geofence at that time. When Google added in data from devices that only connected to its servers later that day, or the next, the number increased to 5,723. (Location History works in airplane mode because phones can continue to receive GPS satellite signals.)

In the second step, the FBI asked Google for a list of devices that were present at the Capitol from 12 pm to 12:15 pm on January 6, and from 9 pm to 9:15 pm. As there were no rioters in the Capitol during those times, these devices likely belonged to congressional members or staff, police, and other people authorized to be there. Over 200 such phones were excluded from the initial list, reducing its total to 5,518.

From this, in early May 2021, the FBI received identifying details for 1,535 users, as well as detailed maps showing how their phones moved through the Capitol and its grounds. Geofence evidence has so far been cited in over 100 charging documents from January 6. In nearly 50 cases, geofence data seems to have provided the initial identification of suspected rioters.

Rhine was first flagged to the FBI by tipsters who had heard that he had been inside the Capitol. But investigators only identified him in surveillance footage after they matched it against the precise geofence coordinates of his phone. His lawyer is now trying to get the geofence evidence thrown out on a number of grounds, including that it was overly broad in who it rounded up, and that Rhine had a constitutional expectation of privacy in his Google data.

“The government enlisted Google to search untold millions of unknown accounts in a massive fishing expedition,” the attorneys wrote. “Just a small amount of Location History can identify individuals … engaged in personal and protected activities (such as exercising their rights under the First Amendment). And as a result, a geofence warrant almost always involves intrusion into constitutionally protected areas.”

If the judge tosses the geofence evidence in the Rhine case, there is a chance that he and other suspects identified using it could walk free.

Matthew Tokson, a law professor and Fourth Amendment expert at the University of Utah, says there remains a high level of uncertainty around the whole idea of geofence warrants: “Some courts have said they are valid. Some have said they are overbroad and sweep up too many innocent people. We are still in the very early stages of this.”

The Rhine case will likely set a critical precedent on geofence search warrants and the dangerous Big Tech-Big Brother partnership threat to individual liberties.

The Federalist explained:

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Google gave the feds the personal data of nearly 1,500 individuals based on cell phone location data indicating their presence near the Capitol complex on Jan. 6, 2021. The Department of Justice sought substantially more information, as well, according to a recent court filing, including data on Jan. 6 cell phone users wholly outside the Capitol. These facts, coupled with Google’s apparent disregard for the privacy rights of its customers, expose the potential for the government and Big Tech to collaboratively target political enemies.

In response to the riot that erupted inside the Capitol on Jan. 6, following a rally at the National Mall and a peaceful protest outside the Capitol, the Department of Justice launched a massive investigation seeking to identify and prosecute the individuals who committed crimes that day. Just a week after the Jan. 6 riot, “the government sought and was granted a ‘geofence’ warrant for data held by Google.”

A “geofence” warrant compels tech companies, such as Google, to provide the identity of individuals whose cell phones were physically located within a defined geographical area during a specific time period. The Jan. 6 warrant served on Google compelled the tech giant to search all accounts to identify devices that appeared physically present on Jan. 6 from 2:00 p.m. until 6:30 p.m. in the “target location.” The “target location” or the “geofence” covered by the warrant included the Capitol building and the area immediately surrounding it, which together covered about four acres of land.

In total, Google identified 5,723 “unique devices” that “were or could have been within the geofence during the relevant time period.” Of the 5,723 devices, the federal government then obtained a warrant forcing Google to provide “the phone number, google account, or other identifying information” for more than 1,500 cell phones that appeared located completely in the geofence area or in cases where the user had later deleted the location data.

How extensively the government used the data obtained from Google in investigating the riot is unclear, but the records eventually led the Department of Justice to charge David Rhine with four federal crimes: entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; disorderly conduct in a Capitol building; and parading, demonstrating, or picketing in a Capitol building.

Rhine pleaded not guilty, and his public defender filed a motion to suppress the data obtained from Google connecting Rhine’s cell phone location to the Capitol, as well as any evidence the federal government obtained as a result of identifying Rhine through the geofence warrant. In his motion to suppress, Rhine argued that the geofence warrant was overbroad and lacking in particularity in violation of the Fourth Amendment.