Standing by in case of ‘dystopian problems,’ court allows use of keyword search data to find suspects
Privacy Law
Standing by in case of ‘dystopian problems,’ court allows use of keyword search data to find suspects
October 17, 2023, 1:16 pm CDT
The Colorado Supreme Court has refused to toss evidence obtained through a keyword search warrant that found people who had searched online for a specific address before a fatal arson at a home. Image from Shutterstock.
The Colorado Supreme Court has refused to toss evidence obtained through a keyword search warrant that found people who had searched online for a specific address before a fatal arson at a home.
The state supreme court said the Denver Police Department “acted reasonably to carry out a novel search in a constitutional manner,” and the good-faith exception to the exclusionary rule applies.
Bloomberg Law and Denver 7 have coverage of the Oct. 16 decision.
A keyword search warrant is issued without specific suspects in mind, and it functions “like a digital dragnet,” according to the two dissenters. In the case before the Colorado Supreme Court, the Denver Police Department obtained warrants requiring Google to disclose the IP addresses of devices used to search for the address of the arson fire in the 15 days before it happened.
The Colorado Supreme Court is the first top state court in the country to address the constitutionality of a keyword search warrant, according to the Electronic Frontier Foundation, which filed two amicus briefs in the case.
“We are disappointed in the result in this case,” the foundation said in a blog post. “Keyword warrants not only have the potential to implicate innocent people; they allow the government to target people for sensitive search terms, like the drug mifepristone, or the names of gender-affirming health care providers or information about psychedelic drugs. … Dragnet warrants that target speech have no place in a democracy.”
The Colorado Supreme Court ruled against Gavin Seymour, one of three people charged with murder and arson after his IP address was identified in the keyword search. A Senegalese family of five in Denver died in the 2020 fire.
Seymour had searched for the home address 14 times before the fire, according to Bloomberg Law. Seymour and the other suspects allegedly thought incorrectly that a stolen iPhone was in the home, Denver 7 reports.
The Colorado Supreme Court majority said Seymour had a reasonable expectation of privacy in his Google search history under the Colorado Constitution, and police copying of the history was a seizure under the state constitution and the Fourth Amendment. The holding gave Seymour standing to challenge the warrant.
The state supreme court assumed without deciding that the warrant was constitutionally defective because it lacked individualized probable cause.
But the good-faith exclusion applies because the warrant was executed and carried out in good faith, the state supreme court said. At the time, no court had held that people have a constitutionally protected privacy interest in their search history.
The Colorado Supreme Court said it was making “no broad proclamation” about the propriety of keyword warrants, which the opinion referred to as “reverse-keyword warrants.”
“Our finding of good faith today neither condones nor condemns all such warrants in the future,” the state supreme court majority said in an opinion by Justice William W. Hood III.
“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,” the Colorado Supreme Court said.
Google told Bloomberg Law that it was important that the Colorado Supreme Court recognized the “significant privacy and First Amendment interests implicated by keyword searches.” The company also said it has “a rigorous process designed to protect the privacy of our users while supporting the important work of law enforcement.”
