Court downplayed privacy risks to uphold cops’ keyword warrant, experts say

On Monday, the Colorado Supreme Court ruled that Google search data evidence retrieved by Denver police using a controversial keyword search warrant can be used to prosecute a teenager who has been charged with deadly arson.

Gavin Seymour, the teenager accused of arson, had moved to suppress the evidence, asking the court to consider whether keyword warrants violate constitutional rights protecting against unlawful, overly broad searches and seizures.

This was the first constitutional challenge to the legitimacy of keyword warrants—which operate in the complete opposite manner of traditional warrants and do not require police to first identify a suspect before conducting a search—but the judge writing the majority opinion, William W. Hood, declined to definitively decide whether keyword search warrants are unconstitutional.

Instead, the court ruled that it didn’t matter if keyword warrants are determined to be illegal, Denver police qualified for a “good-faith exception” for executing the warrant. Hood said that the cops seemingly had no reason to believe the warrant could trample constitutional rights because “no court had established that individuals have a constitutionally protected privacy interest in their Google search history.”

“Law enforcement’s copying of Seymour’s Google search history meaningfully interfered with his possessory interest in that data and constituted a seizure subject to constitutional protection,” Hood wrote. However, “our finding of good faith today neither condones nor condemns all such warrants in the future. 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. Today, we proceed incrementally based on the facts before us.”

Privacy experts told Ars that this ruling could signal to police that any department nationwide can point to the good-faith exception to dodge the question of keyword warrants’ constitutionality. And in her dissenting opinion, Judge Monica Márquez warned, “Today, the court blesses law enforcement’s use of a powerful new tool of the digital age: the reverse-keyword warrant.”

“By authorizing law enforcement to rummage through the private search histories of a billion individuals for potential evidence of criminal activity, reverse-keyword warrants permit exactly what the Fourth Amendment forbids,” Márquez wrote. “They are tantamount to a high-tech version of the reviled ‘general warrants’ that first gave rise to the protections in the Fourth Amendment.”

Ruling impacts every Google user, privacy experts warn

Privacy experts at the Electronic Frontier Foundation (EFF), which played an active role in the case, have warned that keyword warrants serve as “digital dragnets,” allowing police to follow hunches to implicate innocent people in crimes because of keywords used in Internet searches. EFF general counsel Jennifer Lynch told Ars that EFF is “disappointed” in the Colorado ruling, especially since the court upheld the warrant despite otherwise affirming that keyword warrants “impact a person’s free speech rights.”

“Keyword warrants not only have the potential to implicate innocent people, they allow the government to target people for sensitive search terms like ghost guns, or the drug mifepristone, or the names of gender-affirming health care providers, or information about psychedelic drugs,” Lynch told Ars.

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Ashley Belanger