Colorado’s Supreme Court this week had the opportunity to hand down a historic judgment on the constitutionality of “reverse keyword search warrants,” a powerful new surveillance technique that grants law enforcement the ability to identify potential criminal suspects based on broad, far-reaching internet search results. Police say the creative warrants have helped them crack otherwise cold cases. Critics, which include more than a dozen rights organizations and major tech companies, argue the tool’s immense scope tramples on innocent users’ privacy and runs afoul of Fourth Amendment Protections against unreasonable searches by the government.
With eager eyes watching them, Colorado’s court ultimately opted to kick the can down the road.
Civil liberties and digital rights experts speaking with Gizmodo described the court’s “confusing” decision to punt on the constitutionality of reverse keyword search this week as a major missed opportunity and one that could inevitably lead to more cops pursuing the controversial tactics, both in Colorado and beyond. Critics fear these broad warrants, which compel Google and other tech companies to sift through its vast cornucopia of search data to sniff out users who’ve searched for specific keywords, could be weaponized against abortion seekers, political protestors, or even everyday internet users who inadvertently type a result that could someday be used against them in court.
“These are situations where private industry has amalgamated these unbelievably huge databases of an uncountable number of people and the government, without a suspect, is able to go through everybody’s information to try to pluck targets out,” ACLU Speech, Privacy, and Technology Project Surveillance and Cybersecurity Counsel Jennifer Granick told Gizmodo.
What did the Colorado court say?
In a 74-page, 5-2 opinion released Monday, Colorado’s Supreme Court said Denver police officers were justified and acted “in good faith” when they served Google with a reverse keyword search warrant back in 2021 as part of an investigation into a deadly arson that claimed the lives of five Senegalese immigrants. The ruling came in response to a motion to suppress evidence from one of the suspects in the case, who argued the sweeping nature of the keyword search violated his Fourth Amendment protections.
“At every step, law enforcement acted reasonably to carry out a novel search in a constitutional manner,” the court wrote in its majority opinion. “Suppressing the evidence here wouldn’t deter police misconduct.”
The court validated the police conduct but punted entirely on the constitutionality of the reverse keyword searches in question. Though police have increasingly deployed the technique and other tactics like it in recent years, courts still haven’t settled on its actual legality. Despite pressure from the legal community to weigh in, the court threw up its hands and said it neither condoned nor condemned the practice. Future abuses of the warrant that may occur, they said, were a topic for another day.
“If dystopian problems emerge, as some fear, the courts stand ready to hear argument regarding how we should rein in law enforcement’s use of rapidly advancing technology,” the court ruled.
Not everyone on the court agreed. In a dissenting opinion, Colorado judge Monica Marquez warned the court’s deflection of responsibility would be seen as a green light for cops around the country to pursue the suspect warrants with more frequency.
“At the risk of sounding alarmist, I fear that by upholding this practice, the majority’s ruling today gives constitutional cover to law enforcement seeking unprecedented access to the private lives of individuals not just in Colorado, but across the globe,” Marquez wrote. “And I fear that today’s decision invites courts nationwide to do the same.”
Experts speaking with Gizmodo agreed, saying the court’s decision to side with the police using a “good faith exception” could give police an out to pursue cases using the warrants without actually clarifying the murky legal underbelly buried underneath.
If law enforcement doesn’t have clear standards or rules, then their actions will be deemed in good faith,” Jake Laperruque Deputy Director of the Center for Democracy & Technology’s Security & Surveillance Project said in an interview with Gizmodo. “Without any real clarity on what standards or rules are for them, I expect the next [reverse keyword warrant], even if it is deemed deficient, will be allowed into evidence.”
“What the good faith exception really does is it incentivizes police to push the envelope as opposed to what it was supposed to be for, which is to incentivize police to adhere to constitutional limitations,” Granick of the ACLU added.
One group that definitely did appreciate the court’s ruling was local law enforcement. In a statement sent to Gizmodo, Denver District Attorney Beth McCann said she was “very pleased” with the outcome.
“The Court recognized that police officers exercised good faith in obtaining the warrant that led to the identification of the suspects,” McCann said. “We agree with that part of the court’s opinion and will now move forward with our cases. More on that case below.
What was the case and how did we get here?
Surveillance footage obtained from Denver Police on August 5th, 2020 reportedly shows three young-looking individuals shrouded in masks carrying a canister of gasoline. Moments later, a home filled with a family of Senegalese immigrants began filling with smoke. All five of the people in the home, including a toddler and an infant, reportedly died of smoke inhalation and carbon monoxide poisoning just before the entire home was engulfed in violent flames. Police, according to the Denver Post, reportedly found six-month-old Hawa Baye still clasped in her mother’s arms when they sifted through the smoldering rubble.
Over the next few weeks, law enforcement investigating the alleged arson reportedly obtained 23 different search warrants, including some targeting major cell phone companies. The phone providers eventually handed over 7,000 mobile numbers geo-located within a one-mile radius of the rubble. Still, despite two months of intense investigation, law enforcement couldn’t come up with any suspects. Faced with a dead end, police in the case opted to pursue a more legally murky reverse keyword search.
Investigators were confident perpetrators of the alleged arson would have looked up the target’s address ahead of time. Armed with that theory, they served Google a warrant calling on the tech giant to hand over a list of users who had searched for nine variations of “5312 N. Truckee St,” on Google services up to 15 days prior to the fire. Initially, investigators asked Google to provide them with the full names, addresses, birthdays, and physical addresses of anyone who had happened to search the address. At the time, Google reportedly received around 3.5 billion searches on its services every day.
Google initially recoiled at the warrant and said complying with such a broad request for private user data would violate its own privacy policies. DPD withdrew the first warrant and tried again, this time calling on Google to provide two days’ worth of location data for each account determined to have searched for the address during the time window. Google refused once more, again citing its privacy policies.
Finally, on its third try, the DPD broke through. Google eventually complied with the order when DPD narrowed down the request to supposedly anonymous ISP information. Armed with that data, investigators were able to obtain a separate warrant ordering internet service providers to reveal the names of five people. Police eventually narrowed that down to three suspects: Then-16-year olds Kevin Bui and Gavin Seymour, and then-15-year-old Dillon Siebert.
Google acknowledged the Colorado court’s ruling in a statement sent to Gizmodo following the publication of this article.
“It’s important that the Colorado Supreme Court recognized the significant privacy and First Amendment interests implicated by keyword searches,” a Google spokesperson said. “With all law enforcement demands, including reverse warrants, we have a rigorous process designed to protect the privacy of our users while supporting the important work of law enforcement.”
Siebert, who’s 17 now, was sentenced to 10 years in prison earlier this year after he pleaded guilty to second-degree murder as part of a plea deal late last year. Bui, according to a 2021 testimony provided by DPD Detective Neil Baker, reportedly told police he had been robbed of his phone and shoes in 2020 while he was trying to procure a gun. The teen claims he used an app to track his phone back to 5312 N. Truckee where he believed it was being held by thieves. Bui confessed to setting fire to the house, according to Baker, only realizing afterward that the family of immigrant victims weren’t the ones who robbed him.
The third teen suspect, Gavin Seymour, took a different track. Rather than admit to the fire or strike a plea deal, an attorney representing Seymour filed a motion to suppress evidence police gathered from the reverse keyword search presented to Google. In his motion to dismiss, Seymour’s attorneys argued the broad nature of the keyword request violated the Fourth Amendment rights protecting Americans from unreasonable searches and seizures by the government and amounted to a “novel and uniquely destructive digital dragnet of immense proportions.”
Attorneys representing Seymour, and several experts speaking with Gizmodo, argue law enforcement engaged in a “massive fishing expedition” that was neither narrowly tailored nor specific, two things fundamental to traditional warrant requests. Google search results, Seymour’s attorneys argued, are intimate and can reveal private insights a whole host of private insights people may not want out in the open.
Michael W. Price, an attorney with the National Association of Criminal Defense Lawyers representing Seymour, declined to comment.
“The idea that you could learn what someone was thinking…it’s like witchcraft”
Seymour’s attempt to throw out evidence resulting from the Google warrant ultimately worked its way up to Colorado’s Supreme Court, making it the first major court given the opportunity to weigh in on the practice of the increasingly common practice. The ensuing case caught the attention of lawyers and civil liberties groups across the country which hoped the court would provide much-needed legal clarity.
The Electronic Frontier Foundation, a leading critic of the practice, filed multiple amicus briefs highlighting the dangers of normalizing reverse keyword searches. Google searches, the EFF argued, have become guarded places where internet users reveal deeply imitate information about themselves, some genuine and other ephemeral. A reverse search warrant for a cell carrier, for example, could reveal the IP address of a budding jihadist in training, but it could just as easily also reveal the identities of journalists, authors, or historians investigating the topic for their work. In other cases, disaffected youths or individuals anguishing through bouts of severe depression could, and do, search for ways to harm themselves and others even if they never actually commit a crime. A reverse keyword warrant could take those seemingly private clacks of a keyboard and turn them into potential evidence used against internet users in a criminal case.
“I have yet to see any sort of reasonable proposal that says, well, here’s how we could allow keyword search warrants in a way that not only prevents us from looping extraneous private information but actually sometimes really sensitive private information that could be subject to abuse,” Jake Laperruque of the Center for Democracy & Technology said in an interview.
Multiple experts speaking with Gizmodo warned of a potential nightmare scenario where law enforcement in mostly right-wing-led states could use the broader search warrants to find examples of users who had searched for the address of abortion providers or information about gender-affirming care which may violate local laws. In another dystopian twist, experts warn law enforcement could use the same reverse keyword searches to expose attendees of political protests or reveal members of vocal political opposition groups.
“The idea that you could learn what someone was thinking and looking for and what they were curious about and go back in time and do that, it’s like witchcraft,” Granick of the ACLU said.
Net Choice Vice President & General Counsel Carl Szabo, whose trade organization counts Google and Meta among its members, said he believed large tech firms like Google or Facebook could “fight tooth and nail” to oppose government requests for search results that could target abortion seekers or political protests. So far, most of those cases remain hypothetical, however, law enforcement has already used a woman’s search results for the abortion pill. Misoprostol as evidence to charge her for “killing her infant child.”
Though police in the Colorado case reportedly pursued nearly two dozen more precise warrants before resorting to a reverse search, critics like Granick warn that’s not always the case. She warned of a type of “mission creep” setting in which law enforcement around the country where reverse searches, once reserved for extreme outlier cases, could become commonplace.
“You can always come up with a story about why you would need it, but that doesn’t mean that the way it will actually be used is safe or legitimate or respectful of privacy rights.”
It’s easy for search terms to quickly become overly broad and borderline ridiculous. In one case, Granick pointed to a warrant request where police had demanded information from all users who had searched for a kidnapping victim’s name. But the high-profile nature of that case meant just about everyone in the neighborhood would have searched the name and wound up caught up in the search.
“I think the biggest worry is that there’ll be added use of keyword searches to try to pull in people based on intent or just what they’re thinking about—what they’re considering,” Laperruque said.
The EFF echoed those concerns in a recent blog post and said law enforcement’s current latitude to use reverse searches could even implicate search results partially generated by Google’s autocomplete tool in search. Activists and attorneys fear these “unintended searches’ could lead to a dystopian and dysfunctional reality where anodyne or frivolous searches could be used against defendants.
Some experts like Szabo believe the legality of reverse keyword searches may eventually be answered by the US Supreme Court, but that’s likely years away if it ever happens. In the meantime, states and local lawmakers have taken the initiative and begun crafting legislation that would set limits on the types of data police can request from keyword search warrants or, in some cases, essentially ban the practice altogether.
New York and California have both proposed legislation to place strict limitations on “reverse search warrants” which include reverse keyword search and the even more popular “geofence warrants” where law enforcement can request information on all devices located within a particular area of a period of time. Unlike traditional warrants, neither of those “reverse search warrants” requires police to have a particular suspect in mind when requesting massive amounts of data. In California, the number of geofence warrant requests alone jumped from 209 requests in 2018 to 1,909 requests in 2020, according to Wired. Data on the rise of reverse keyword search warrants is less common.
Szabo said we may be witnessing “the next chapter” of what’s deemed reasonable for search warrants in real-time. In the past, Congress stepped in to place limits over the lengths law enforcement could go to request information about an individual’s video rental history or their emails, whether it’s your video rental history through laws like the Electronic Communications Privacy Act or the Video Privacy Protection Act. Granick of the ACLU largely agreed.
“I do think legislation is the thing that will protect people’s rights more comprehensively and more quickly,” Granick said. “There’s lots of rules that could be instantiated in legislation that litigation over the Fourth Amendment isn’t necessarily going to make clear.”
Update 6:20 P.M. EST: Added statement from Google