Keyword Search Warrants: a warrant to identify suspects through data surveillance?

Created with Microsoft Bing Image Creator powered by DALL-E

Keyword Search Warrants: a warrant to identify suspects through data surveillance? 

        Keyword Search Warrants come under question on issues of privacy: a 2020 arson case in Colorado where a warrant was used to request information from Google regarding those who searched for the address of the fire. Usually, warrants are issued to search data relating to an identified suspect, but in this case, the warrant was issued to search the data of everyone first, before identifying a suspect from that data. Therefore, the warrant applied to search the data of everyone, not merely a suspect, which in Google's case could apply do thousands if not millions of users who may reside in other states or countries. Such "geofence warrants" have been increasing since 2018, representing more than a "quarter of all warrant requests" to Google in the US. Note, a 'geofence warrant' asks for information on anyone within the location of a crime scene at a given time, while a 'keyword search warrant' asks for information on those who searched for a specific word/phrase during a period of time. 

        The implications have become far more relevant with the recent US Supreme Court decision overturning rights to abortion, as well as related concerns of one's search history for abortion clinics becoming criminal evidence. With mounting precedent on police using keyword search warrants to identify or prove suspects, there is also the possibility these warrants will be used to identify and track those searching for abortion-inducing drugs or locations providing abortion services. In such a scenario, rather than identifying a suspect, providing probable cause, and then receiving a warrant to search for evidence, such keyword search warrants skips the first step entirely and utilizes what could be viewed as mass surveillance to identify suspects. 

        The privacy issues arise from the possibility of revealing personal information of innocent people who searched for same or similar keywords with no criminal intent, and thus compromise their privacy. Since keyword warrants can identify all users in a physical area even if they are not related to the crime, it can be argued as a violation of the Fourth Amendment right against unreasonable search and seizure. Especially considering the billions of users Google has information on, there are further fears that it may be abused as a tool of surveillance against specific groups, which involves First Amendment freedom of speech issues. For example, a geofence warrant was used to identify protesters suspected of sparking violence after the police killing of Floyd in 2020. That being said, keyword search warrants can also be a highly effective tool for police to resolve crimes; for instance, a 2019 kidnapping and sexual assault case in Wisconsin involved a keyword warrant being issued to Google, Microsoft and Yahoo regarding those who searched for the victim's name and address over a specific period of time. 

        Some possible solutions to this are to either ban such keyword search warrants entirely, or have the companies in charge of the data use a privacy-by-design method to not retain such personal information (which bypasses the problem by not having the data the warrant requests). New York already has a bill preventing the use of keyword warrants on those who are under no individual suspicion of a crime, and were merely at a given location or searched a particular term at the wrong time. However, realistically speaking it is unlikely companies will implement such methods as personal information is what many companies like Google use to earn revenue. Thus it may be dependent upon legal cases to set precedents of privacy violations from keyword search warrants to either tighten the requirements that must be met for a judge to approve of such warrants, or for companies to improve their data privacy standards when dealing with police requests.