Daily Archives: December 12, 2022

Google gave the feds the personal data of nearly 1,500 individuals based on cell phone location data indicating their presence near the Capitol complex on Jan. 6, 2021. The Department of Justice sought substantially more information, as well, according to a recent court filing, including data on Jan. 6 cell phone users wholly outside the Capitol. These facts, coupled with Googles apparent disregard for the privacy rights of its customers, expose the potential for the government and Big Tech to collaboratively target political enemies.

In response to the riot that erupted inside the Capitol on Jan. 6, following a rally at the National Mall and a peaceful protest outside the Capitol, the Department of Justice launched a massive investigation seeking to identify and prosecute the individuals who committed crimes that day. Just a week after the Jan. 6 riot, the government sought and was granted a geofence warrant for data held by Google.

A geofence warrant compels tech companies, such as Google, to provide the identity of individuals whose cell phones were physically located within a defined geographical area during a specific time period. The Jan. 6 warrant served on Google compelled the tech giant to search all accounts to identify devices that appeared physically present on Jan. 6 from 2:00 p.m. until 6:30 p.m. in the target location. The target location or the geofence covered by the warrant included the Capitol building and the area immediately surrounding it, which together covered about four acres of land.

In total, Google identified 5,723 unique devices that were or could have been within the geofence during the relevant time period. Of the 5,723 devices, the federal government then obtained a warrant forcing Google to provide the phone number, google account, or other identifying information for more than 1,500 cell phones that appeared located completely in the geofence area or in cases where the user had later deleted the location data.

How extensively the government used the data obtained from Google in investigating the riot is unclear, but the records eventually led the Department of Justice to charge David Rhine with four federal crimes: entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; disorderly conduct in a Capitol building; and parading, demonstrating, or picketing in a Capitol building.

Rhine pleaded not guilty, and his public defender filed a motion to suppress the data obtained from Google connecting Rhines cell phone location to the Capitol, as well as any evidence the federal government obtained as a result of identifying Rhine through the geofence warrant. In his motion to suppress, Rhine argued that the geofence warrant was overbroad and lacking in particularity in violation of the Fourth Amendment.

Whether a geofence data search constitutes a search within the meaning of the Fourth Amendment remains hotly debated, and to date, only a few lower courts have addressed the issue. The handful of courts that have considered the issue have concluded the Fourth Amendment applies to requests for geofence data and thus the government must establish probable cause to obtain the data. And in upholding the geofence warrants in those cases, the courts have stressed the narrowness of the scope of the warrants at issue.

In contrast, here the government obtained the personal data of more than 1,500 people whose cell phones appeared to have been located within a four-acre area. This case will thus likely lead to significant developments in Fourth Amendment jurisprudence related to geofence searches.

It will likely be years, however, before there is any clarity on the Fourth Amendment question. But what the Rhine case reveals now is the danger that a partnership between an equally politicized federal government and Big Tech presents to disfavored groups.

The geofence warrant obtained by the federal government to investigate the Jan. 6 riot reached the personal data of more than 1,500 individuals who, according to Googles estimation, were only 68 percent likely to have been present in the four-acre area consisting of the Capitol and its surrounding area. And even then, not all the areas outside the Capitol were off-limits. Further, while irrelevant to Rhines case, his attorney noted that, in addition to the personal data related to the 1,500-plus individuals, the government later sought substantially more data from geofences in areas next to, but wholly outside of, the Capitol Building.

The majority of individuals whose personal data was obtained by the federal government committed no crimes but likely attended the pro-Trump rally, making them political enemies of the Biden administration. Yet, because they were not charged with a crime, those American citizens will never know the government collected their personal information. And then there is the concern over what use the Biden administration may make of the information of innocent Americans it collected.

Equally concerning is the potential for the federal government to use geofence warrants only for disfavored suspects, or as a pretext to create an enemies list. The federal government sought geofence warrants for Jan. 6, but did they do so when St. Johns burned or to identify Antifa criminals? What about to identify the individual who planted pipe bombs at the RNC and DNC or to locate the vandals who targeted crisis pregnancy centers? Or might the Biden administration seek a geofence warrant to create a list of parents protesting school board meetings, using creative lawyering to devise a pretextual criminal investigation to justify the warrant?

In the past, Google has served as a check of sorts on overbroad data requests, as a Guardian article from last year highlighted. Then The Guardian warned of geofence warrants, suggesting that Texas law enforcement officials could use a pretext, literally any other law on the books, to obtain a list of cell phones connected to abortion facilities to target individuals under new abortion laws. A Google spokesman, however, told The Guardian that the company has challenged many overly broad government requests. We use a rigorous process designed to honor our legal obligations while narrowing the scope of data disclosed, the Google representative said in a statement.

Google also filed an amicus curiae, or friend of the court brief, in a criminal case the federal government brought against a bank robber, with the tech giant taking the position that a geofence search is a search within the meaning of the Fourth Amendment and as such requires the government to obtain a warrant. To date, Google has not filed a similar brief in the Rhine case, and an email to the attorneys representing Google in the previous case, inquiring whether they intended to submit a brief in the Jan. 6 case, went unanswered.

Briefing in the Rhine case also revealed another anomaly, with Rhines attorney claiming that even before the government served a geofence warrant on Google, the tech giant actually preserved the location data of its users from the evenings of Jan. 6 and 7. According to Rhines attorney, Google preserved that data in violation of its own policies that represent to its users that if they choose to delete Location History, that data is indeed gone (not preserved by Google). Then, after the DOJ served the geofence warrant on Google, Google searched the preserved data for the government.

Whether the DOJ asked Google to preserve the location data is unknown, but given the cozy relationship between the government and Big Tech as demonstrated by the censorship of disfavored views, that is a distinct possibility. Either way, Google apparently ignored its own policies to help the government when it was a matter of potential crimes related to Jan. 6. One must wonder if Google would have done the same had the DOJ sought data related to the violence flowing over from a Black Lives Matter protest.

While the country waits for the courts to decide the constitutional question, the conversation should not be so limited because the Fourth Amendment represents but a sliver of the concerns geofence warrants raise.

Margot Cleveland is The Federalist's senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prizethe law schools highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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J6 Witch Hunt Is What Happens When Big Tech And Feds Team Up

Ireland's Data Protection Commissioner (DPC) hasdecided to fine Facebook265 million euros or $275 million for violating the General Data Protection Regulation (GDPR) by enabling the scraping of sensitive user data between May 2018 and September 2019. This fine marks the fourth for platforms owned by Facebook's parent company Meta. Even though it might seem like a considerable sum, it's not the most significant amount of money a company had to pay in the history of the GDPR.

As Statista's Florian Zandt shows in the chart below, that questionable honor goes to Amazon, another member ofGAFAM.

You will find more infographics at Statista

In July of 2021, Luxembourg's data watchdog issued the European branch of the multi-billion dollar tech firm a fine of roughly $774 million in current prices for the "non-compliance with general data processing principles" according to the GDPR Enforcement Tracker by CMS Law. The fourth place on the list of highest fines goes to WhatsApp, followed by three counts of Google, Facebook, and Swedish fashion companyH&Mviolating the GDPR.

The regulatory framework of theGDPRaims to give users more control over their data and lays the groundwork for fining companies offering their services in the EU for breaching its articles. The GDPR was instated on May 25, 2018, as a replacement for the EU's Data Protection Directive from 1995 and contains 99 articles.

So far, the GDPR Enforcement Tracker lists 1,507 individual breaches of the GDPR, although the data is most likely incomplete since not all fines are made public.

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Big Tech, Big Fines | ZeroHedge

A federal judge ruled on Monday that former White House Press Secretary Jen Psaki must comply with an investigation that seeks to uncover the federal governments collusion with Big Tech to suppress Covid-related posts they deemed misinformation.

Writing for the Western District of Louisiana District Court, Judge Terry A. Doughty denied a request by Psaki to quash a subpoena seeking her deposition in a lawsuit filed by Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry. In his reasoning, Doughty said that [p]reparing for and giving a deposition is part of the normal process for every person subpoenaed for a deposition and that despite Psakis contention, it is not an undue burden.

Psakis request for the Louisiana court to stay the deposition pending appeal was also denied, with Doughty reasoning that Psaki and federal defendants did not make a strong showing for why their case would likely succeed. (A stay is when a court takes action to halt a judicial proceeding or the actions of a party.)

The ruling came a day after a separate federal judge in Alexandria, Virginia, refused to quash the subpoena and summarily transferred the case back to Louisiana where the lawsuit was filed.

Ms. Psakis effort to eliminate or delay her deposition in this action had failed because of the swift action of two judges in widely dispersed courts, one in Virginia and one in Louisiana, and by the implausibility of her reasons for not testifying as to Federal efforts to censure social media that made quick resolution possible, said John J. Vecchione, who serves as senior litigation counsel for the New Civil Liberties Alliance (a party in the suit), in a statement.

The Monday ruling from Doughty comes a month after he ordered Psaki, along with other high-profile Biden administration officials such as Dr. Anthony Fauci, to comply with Schmitt and Landrys investigation.

In the early stages of their lawsuit, the Missouri and Louisiana AGs uncovered a trove of communication records from top-ranking Biden administration officials showing coordination with companies such as Facebook and Twitter to censor Covid-related information that disputed the governments approach to the virus. In a July 2021 email addressed to U.S. Surgeon General Vivek Murthy, for example, a representative from Facebook noted how the company and Biden administration officials had previously met to better understand the scope of what the White House expects from [Facebook] on misinformation going forward.

A separate email from later that month also shows the social media platform asking the CDC if the agency would be interested in doing a monthly [Covid] misinfo/debunking meeting with Facebook employees, to which an agency official replied, Yes, we would love to do that.

Shawn Fleetwood is a Staff Writer for The Federalist and a graduate of the University of Mary Washington. He also serves as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood

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Court: Psaki Must Testify Over White House's Big Tech Collusion

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Big Tech shows off its AI | Financial Times

Big Tech and governments are fighting the fake reviews industry. India is gearing up too.  Economic Times

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Big Tech and governments are fighting the fake reviews industry. India is gearing up too. - Economic Times

VOTE: Do you trust Big Tech platforms to treat all points of view fairly?  ABC6OnYourSide.com

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VOTE: Do you trust Big Tech platforms to treat all points of view fairly? - ABC6OnYourSide.com

Online safety: what young people really think about social media, big tech regulation and adults...  Moneycontrol

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Online safety: what young people really think about social media, big tech regulation and adults... - Moneycontrol