Keyword warrants that let police indiscriminately sift through search engine databases are unconstitutional dragnets that target free speech, lack particularity and probable cause, and violate the privacy of countless innocent people.
This statement was originally published on eff.org on 5 January 2024.
These dragnet searches violate the privacy of millions of Americans
Keyword warrants that let police indiscriminately sift through search engine databases are unconstitutional dragnets that target free speech, lack particularity and probable cause, and violate the privacy of countless innocent people, the Electronic Frontier Foundation (EFF) and other organizations argued in a brief filed today to the Supreme Court of Pennsylvania.
Everyone deserves to search online without police looking over their shoulder, yet millions of innocent Americans’ privacy rights are at risk in Commonwealth v. Kurtz – only the second case of its kind to reach a state’s highest court. The brief filed by EFF, the National Association of Criminal Defense Lawyers (NACDL), and the Pennsylvania Association of Criminal Defense Lawyers (PACDL) challenges the constitutionality of a keyword search warrant issued by the police to Google. The case involves a massive invasion of Google users’ privacy, and unless the lower court’s ruling is overturned, it could be applied to any user using any search engine.
“Keyword search warrants are totally incompatible with constitutional protections for privacy and freedom of speech and expression,” said EFF Surveillance Litigation Director Andrew Crocker. “All keyword warrants – which target our speech when we seek information on a search engine – have the potential to implicate innocent people who just happen to be searching for something an officer believes is somehow linked to a crime. Dragnet warrants that target speech simply have no place in a democracy.”
Users have come to rely on search engines to routinely seek answers to sensitive or unflattering questions that they might never feel comfortable asking a human confidant. Google keeps detailed information on every search query it receives, however, resulting in a vast record of users’ most private and personal thoughts, opinions, and associations that police seek to access by merely demanding the identities of all users who searched for specific keywords.
Because this data is so broad and detailed, keyword search warrants are especially concerning: Unlike typical warrants for electronic information, these do not target specific people or accounts. Instead, they require a provider to search its entire reserve of user data to identify any and all users or devices who searched for words or phrases specified by police. As in this case, the police generally have no identified suspects when they seek such a warrant; instead, the sole basis is the officer’s hunch that the perpetrator might have searched for something related to the crime.
This violates the Pennsylvania Constitution’s Article I, Section 8 and the Fourth Amendment to the U.S. Constitution, EFF’s brief argued, both of which were inspired by 18th-century writs of assistance – general warrants that let police conduct exploratory rummaging through a person’s belongings. These keyword search warrants also are especially harmful because they target protected speech and the related right to receive information, the brief argued.
“Keyword search warrants are digital dragnets giving the government permission to rummage through our most private information, and the Pennsylvania Supreme Court should find them unconstitutional,” said NACDL Fourth Amendment Center Litigation Director Michael Price.
“Search engines are an indispensable tool for finding information on the Internet, and the ability to use them – and use them anonymously – is critical to a free society,” said Crocker. “If providers can be forced to disclose users’ search queries in response to a dragnet warrant, it will chill users from seeking out information about anything that police officers might conceivably choose as a searchable keyword.”
For the brief: https://www.eff.org/document/commonwealth-v-kurtz-amicus-brief-pennsylvania-supreme-court-1-5-2024
For a similar case in Colorado: https://www.eff.org/deeplinks/2023/10/colorado-supreme-court-upholds-keyword-search-warrant
