Wrong Search at the Wrong Time: Keyword Search Warrants and the Fourth Amendment

Introduction

The Denver Police Department was able to identify Bui and his accomplices by serving Google a keyword search warrant. A keyword search warrant is a type of reverse search warrant that demands data about any and all individuals who have searched for certain keywords during a specified time period. A reverse search warrant is significantly different from a traditional search warrant because the former is used by law enforcement officials to find suspects to investigate. A traditional search warrant, in contrast, is used by law enforcement officials when they have probable cause to believe that a specific individual has committed a particular crime. The police in this case were unable to identify the perpetrators until they used a keyword search warrant. Indeed, they had executed twenty-three other warrants prior to the keyword search warrant—to no avail. The keyword search warrant was issued to Google and sought data on anyone who searched for nine variations of the address of the home prior to the fire. Google executed a text-based query, which returned sixty-one searches that were associated with five Google identifiers (GAIA IDs) and three Browser Cookie IDs. The warrant did not authorize additional information about those users to be disclosed, so the law enforcement officials served Google with another warrant; the subsequent warrant requested identifying information associated with the five GAIA IDs. Google produced the basic subscriber information for those users, which led investigators to find that the three teenagers had searched for the address multiple times in the two weeks before the fire.

The lawyers for Gavin Seymour, one of the teens, are arguing that the search violated the Fourth Amendment’s protection against unreasonable searches. This case, People v. Seymour, is the first known case in the United States to challenge the constitutionality of keyword search warrants. On November 16, 2022, Denver District Court Judge Martin Egelhoff upheld the constitutionality of the keyword search warrant and denied the defendant’s motion to suppress evidence. Judge Egelhoff found that the police acted appropriately and that the warrant was sufficiently narrow and supported by probable cause. He rejected the argument that a violation of privacy had occurred and stated that the search was not overbroad because it was targeted. The Colorado Supreme Court will review the ruling on the constitutionality of the keyword search warrant in the latter half of 2023.

This Note will advocate for the view that when presented with the issue, state and federal courts should establish that keyword search warrants are unconstitutional because they violate the Fourth Amendment. Keyword search warrants cannot meet the Fourth Amendment’s requirements of probable cause and particularity because the subjects of the search cannot be identified until after the search is completed. These warrants are unnecessary and have the potential of implicating millions of internet users who have no connection to a crime. This Note will contend that individuals have a reasonable expectation of privacy in their search history data, and that law enforcement officials violate the Fourth Amendment’s protection against unreasonable searches when they obtain such data without a traditional search warrant.

Part I of this Note will provide the history, jurisprudence, and other background information necessary to this issue. To begin, Section I.A will present an overview of the Fourth Amendment by describing its history and role in protecting individuals against unreasonable searches and seizures. Next, Section I.B will describe what action is required for courts to find that a Fourth Amendment search has occurred. Subsequently, Section I.C will examine the third-party doctrine to illustrate circumstances in which individuals do not have a reasonable expectation of privacy. Then, Section I.D will examine the Supreme Court’s decision in Ybarra v. Illinois to explain that probable cause must be particularized to every individual being searched. Section I.E will first examine the decision in Carpenter v. United States and then discuss the multi-factor test that emerged from the case. After, Section I.F will describe the various instances in which keyword search warrants have been used in the United States. Section I.G will discuss Google’s procedures after it is served with a keyword search warrant. This Note focuses on Google because it is the most popular search engine and has disclosed its procedures in responding to keyword search warrants. Part I will end with Section I.H, which will examine the decision in United States v. Chatrie to show that similar warrants have been found to violate the Fourth Amendment.

Part II of this Note will analyze keyword search warrants in the context of the Fourth Amendment to argue that keyword search warrants cannot be substituted for traditional search warrants. First, Section II.A will apply the Carpenter test to search history data to demonstrate that individuals have a reasonable expectation of privacy in their data, so a traditional search warrant is required to obtain such information. Following that, Section II.B will assert that keyword search warrants can never be based on probable cause, discussing the Austin serial bombings investigation to illustrate the point. Next, Section II.C will argue that keyword search warrants are unconstitutional because they do not meet the Fourth Amendment’s particularity requirement. Then, Section II.D will argue that courts should hold keyword search warrants to be unconstitutional as they have for geofence warrants. Finally, Section II.E will explain that keyword search warrants are unnecessary because law enforcement officials can use less intrusive traditional investigative techniques to find perpetrators.