The Roe v. Wade decision has put “keyword warrants” back in the spotlight, as fears grow that law enforcement will comb through Google searches to identify women seeking abortions.
Law enforcement is able to issue warrants for specific Google searches, potentially sweeping up the queries of hundreds or thousands of unrelated individuals. But the practice is facing new legal arguments that it is a violation of Constitutional rights protecting against arbitrary and unreasonable searches.
Keyword warrants challenged in federal court
Keyword warrants are facing their first direct challenge in federal court, but the case does not involve abortion. Still, privacy and abortion advocates are keeping careful tabs on it as the eventual ruling could determine the extent to which law enforcement is allowed to go on “fishing expeditions” for abortion seekers.
The case involves a group of teenagers charged with a residential arson in Denver that killed a family of five. The teenagers were identified by police via Google searches for the address at which the arson took place. Lawyers for the teenagers are arguing that this is a violation of Fourth Amendment protection against unreasonable searches, as police would have had to trawl an unknown amount of Google searches from unrelated parties to hit upon this information.
Keyword warrants of this nature have been used since at least 2016, and are essentially the inverse of a traditional search warrant. Search warrants generally require that law enforcement demonstrate to a court that there is reason to believe a specific individual is associated with a crime. Keyword warrants go in the opposite direction, using information that may only be coincidentally related to the crime to identify groups of possible suspects.
Not much specific information is released about law enforcement requests for Google searches, but parent company Alphabet does document the overall amount of reverse location requests each year. These requests multiplied from 982 in 2018 to 8,396 in 2019, and there are now over 10,000 each year. 25% of these requests in 2021 were revealed to be geofence data requests for cell phone locations, leaving the assumption that the remaining 75% involve keyword warrants.
Laws sometime restrict these fishing expeditions through Google searches to cases of a particular level of seriousness, such as terrorism or child trafficking. This does not appear to be the case with US keyword warrants, which have been used in cases ranging from $28,500 in bank fraud to anyone Googling the address of a sexual assualt victim. The vast majority of keyword warrants have been used in cases that are sealed, so the range of crimes for which they are routinely used is not well known.
Could Google searches for abortion services be targeted?
The court cases raises not just Fourth Amendment questions about the limitations of digital searches, but also potential First Amendment issues if the law enforcement agencies are logging the Google searches of unrelated parties. The ACLU of New York has raised concerns that keyword warrants were used to identify people attending the George Floyd protests that occurred in 2020.
A decision against the Denver police in this case would likely put significant restrictions on keyword warrants, if not eliminating them entirely. But if things stay as they are, there are fears that police in some anti-abortion states will go to the extreme of combing Google searches for those looking for abortion methods, or those that are seeking out or have visited clinics such as Planned Parenthood.
Google searches and similar web history have already been used to investigate at least two abortion cases while Roe v. Wade was still in effect, both involving situations in which a pregnant woman experienced a miscarraige. In both cases, searches for at-home abortion drugs (such as mifeprisone) were accessed by the prosecution. One of the women, Latice Fisher, was indicted for second-degree murder in Mississippi but ultimately saw the charges dropped. That case took place in 2018.
The Electronic Frontier Foundation (EFF) has joined this campaign, preparing an amicus brief for the Denver case and publishing a series of blog posts noting the potential dangers of allowing unfettered law enforcement access to Google searches. The organization notes that Google is fighting keyword warrants in Brazil (with a case before that country’s Supreme Federal Court) but has only made allusions to “pushing back” when it comes to these requests in the US.
In another blog post, the EFF points out that the Denver police requested Google searches for a street name that appears in at least four other states. The organization also notes that Colorado has a prior decision on its books, 2002’s Tattered Cover v. Thornton, in which the court ruled that police should be precluded from executing blanket searches that threaten “freedom of expression, association, and the right to receive information.”
