Are reverse warrants the radical undoing of Fourth Amendment rights AB 793 Claims?

In late May, California lawmakers narrowly advanced a digital privacy bill prohibiting police from using warrants that compel tech companies to disclose individuals' identities based on phone location and internet search history. See Assembly Bill 793. Assemblymember Mia Bonta (D-Oakland) authored the bill in response to the Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade. "With states across the country passing anti-abortion and anti-trans legislation, it's vital that California shore up our protections against digital tracking of vulnerable people seeking healthcare," Bonta stated.

Proponents of the bill include groups such as the ACLU, the Electronic Frontier Foundation, and If/When/How. These groups argue "reverse warrants" - also known as "reverse-location warrants," "geofence warrants," or "reverse-keyword warrants" - enable law enforcement in states hostile to abortion rights or transgender services to track citizens who may be seeking care available under California law but banned in their own jurisdiction. They further suggest that, in practice, reverse warrants amount to "general warrants" and allow invasive searches that fail to identify specific persons, devices, or places to be searched. Id. Section 1(h). Since our nation's founding, general warrants have been deemed a significant threat to personal privacy and liberty, and the U.S. Supreme Court has repeatedly held them to be unconstitutional under the Fourth Amendment. Id.

Thus far, the judiciary has not found this type of warrant nearly as problematic. Courts have generally upheld reverse warrants if they are sufficiently particular regarding the place to be searched, the time of the search, and the objects to be seized. For instance, after first discussing the history and concern with general warrants, the District Court for the District of Columbia upheld a reverse warrant where: (1) it "only sought users' whereabouts in a single area for a handful of minutes on the days in question..."; (2) "[t]he time windows requested were closely keyed to the periods during which the suspects were inside the location identified..."; and (3) "[t]he requested geofence covered [only] a portion of the front half of a specific location...and an area closely associated with the location...." Matter of Search of Info. That is Stored at Premises Controlled by Google LLC, 579 F. Supp. 3d 62 (2021). Similarly, the Northern District of Illinois upheld a reverse warrant because it "narrowly identified the place by time and location," and it "sought to carve out very limited geographical areas and avoided capturing data from individuals uninvolved in the [crime]..." Matter of Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation, 497 F. Supp. 3d 345, 349 (2020).

Courts have also acted to limit overbroad requests they deem to have crossed constitutional lines. The Northern District of Illinois invalidated a geofence warrant where it did not "identify any of the persons" whose location information the government sought to obtain. Matter of Search of Info. Stored at Premises Controlled by Google, 481 F. Supp. 3d 730, 754 (2020). The Court concluded, "the warrant puts no limit on the government's discretion to select the device IDs from which it may then derive identifying subscriber information from among the anonymized list of Google-connected devices that traversed the geofences." Id.; see also Matter of Search of Info. That is Stored at Premises Controlled by Google, LLC, 542 F. Supp. 3d 1153 (2021) (Fourth Amendment violated where geofence boundary included highly traveled public streets and businesses).

This is why David Harris of the California District Attorney's Association (CDAA) argues the fear that reverse warrants pose the same danger as general warrants is misguided, as the particularized evidence law enforcement must provide to get a reverse warrant remains a sufficient constitutional barrier. More concerning from a law enforcement perspective, is that AB 793 seeks to prohibit a necessary tool for law enforcement investigations without any evidence that the problem Bonta seeks to remedy in fact exists. While Bonta cites the statistic that "[b]etween 2018 and 2020, Google received more than 5,700 reverse warrant demands from states that now have anti-abortion and anti-LGBTQ legislation on the books," she points to no evidence that these demands are presently, or have ever been, targeted at individuals seeking abortions or transgender medical services. She also points to no evidence suggesting these states plan to use reverse warrants to target these groups in the future.

Yet Bonta's solution in search of a problem would have wide-ranging and deleterious impacts for law enforcement. Groups like the CDAA and the Sacramento Sheriff's Office argue the bill would prevent the issuance of search warrants for critical information that is routinely used to solve cases involving mass shootings, bombings, rapes and various other crimes. This is because the language of the bill is far broader than one might expect given its purportedly narrow purpose. While the bill's intent is ostensibly to prohibit the use of reverse warrants that target location and keyword data relating to abortion and transgender medical services specifically, the bill's language broadly prohibits the procurement and use of reverse-location and reverse-keyword demands by government entities in general, without regard to the conduct being investigated.

Of particular concern, Greg Totten of the CDAA argues, is the bill's impact on law enforcement's ability to investigate child trafficking and child abduction. For these crimes, reverse warrants are especially needed as the real time information they provide is sometimes the only hope law enforcement have of finding a child in grave danger.

Regardless of one's opinion on access to abortion or transgender medical services, what is clear is AB 793, in its present form, would severely restrict the investigative tools at law enforcements' disposal for every type of crime. More concerning, it does so without demonstrating any evidence that its purported purpose presents an actual need for this drastic upending of the status quo. While there certainly are legitimate concerns regarding reverse warrants, AB 793 appears to be a knee-jerk solution to a non-existent problem with potentially disastrous societal consequences.