By Jennifer Lynch and Andrew Crocker / Electronic Frontier Foundation
Should the police be able to ask Google for the name of everyone who searched for the address of an abortion provider in a state where abortions are now illegal? Or who searched for the drug mifepristone? What about people who searched for gender-affirming healthcare providers in a state that has equated such care with child abuse? Or everyone who searched for a dispensary in a state that has legalized cannabis but where the federal government still considers it illegal?
The answer is no. And in an amicus brief EFF intends to file today in Colorado, we explain why these searches are totally incompatible with constitutional protections for privacy and freedom of speech and expression.
The case is People v. Seymour, and it is perhaps the first U.S. case to address the constitutionality of a keyword warrant. The case involves a tragic home arson in which several people died. Police didn’t have a suspect, so they used a keyword warrant to ask Google for identifying information on anyone and everyone who searched for variations on the home’s street address in the two weeks prior to the arson.
Like geofence warrants, keyword warrants cast a dragnet that requires a provider to search its entire reserve of user data—in this case queries by more than one billion Google users. As in this case, the police generally have no identified suspects when they obtain a keyword search warrant. Instead, the sole basis for the warrant is the officer’s hunch that the suspect might have searched for something in some way related to the crime.
Keyword warrants are possible because it is virtually impossible to navigate the modern Internet without entering search queries into a search engine. By some accounts, there are over 1.15 billion websites, and tens of billions of webpages. Google Search processes as many as 100,000 queries every second. Many users have come to rely on search engines to such a degree that they routinely search for the answers to sensitive or unflattering questions that they might never feel comfortable asking a human confidant, even friends, family members, doctors, or clergy. Over the course of months and years, there is little about a user’s life that will not be reflected in their search keywords, from the mundane to the most intimate. The result is a vast record of some of users’ most private and personal thoughts, opinions, and associations.
Google appears to keep a record of every single search—even if a user isn’t logged into a Google account at the time. Google links search queries to IP addresses and ISP information and discloses that information to police in response to a keyword warrant. Given this, it is very difficult for the average person to hide their Internet searches from Google—and, by extension, the government.
All keyword warrants have the potential to implicate innocent people who just happen to be searching for something an officer believes is somehow linked to the crime. For example, the warrant in People v. Seymour sought everyone who searched for a specific address on “Truckee” street, where the crime took place. However, there are streets named “Truckee” in several cities and towns in Colorado, as well as in Arizona, California, Idaho, and Nevada. Keyword warrants could also allow officers to target people based on political speech and by their association with others by requesting information on everyone who searched for the location or the organizers of a protest. Police used similar dragnet warrants to try to identify people at political protests in Kenosha, Wisconsin and Minneapolis after police killings in those cities.
In our brief, we will be telling the court that keyword warrants — which explicitly target protected speech and the right to receive information — are overbroad and violate both the U.S. and Colorado state constitutions. Search engines are an indispensable tool for finding information on the Internet, and the right to use them—and use them anonymously—is critical to a free society. If providers can be forced to disclose users’ search queries, this will chill users from seeking out information on anything that might result in government scrutiny.
The U.S. Supreme Court and the Colorado Supreme Court have both recognized that police searches that target speech are so concerning that they should be reviewed with “heightened scrutiny.” The Colorado Supreme Court has taken this one step further. In a 2002 case called Tattered Cover v. Thornton, the court noted that there are some circumstances where a search so threatens freedom of expression, association, and the right to receive information that “the police should be entirely precluded from executing the warrant.” This is just such a case.
Dragnet warrants that target speech have no place in a democracy. We will continue to fight to convince courts and legislatures they are unconstitutional and should be outlawed.
EFF Amicus Brief in People v. Seymour