The government has repeatedly demanded Google hand over information on anyone searching specific terms. For the first time, lawyers and privacy advocates are challenging the lawfulness of those searches in court, in the case of an arson that led to the deaths of two small girls and their parents.
On August 5, 2020, Denver police officer Gordon King was on night patrol when he came across a house on fire. After calling the fire department, he tried to determine if there was anyone inside. He kicked in the front door, but it was so hot inside, he couldn’t enter. He then saw a small person in the room and attempted to reach for them, but was again pushed back by the extreme heat.
Three people in the house – a father, mother, and daughter – had escaped the fire by jumping out of an upstairs window. Five remained inside. All of them died. They were a family from Senegal, like their co-occupants, and among the dead were two young girls. One was 22 months. The other just seven months.
Video footage of the incident showed three apparent assailants wearing masks and hoodies, according to arrest warrants reviewd by Forbes. One was holding what appeared to be a gas canister, investigators said.
But by November, it was clear the cops didn’t have much more to go on than the video of three unidentifiable individuals. So they drew up a search warrant asking Google for information on anyone who searched nine variations of the address of the arson. Google sent information on five of its users who had made such searches, either in its search tool or in Google Maps. That led investigators to teenage suspects Kevin Bui, Gavin Seymour and another minor who cannot be named due to their age. All three had searched for the address prior to the arson. One suspect, Bui, would later reportedly admit to setting the house on fire mistakenly believing someone inside had stolen his iPhone, according to police testimony. The three have been charged and have pleaded not guilty.
While the order for Google to provide the search data, known as a keyword warrant, led police to the alleged murderers, privacy advocates and the legal counsel for one of the defendants say they’re unconstitutional. This week, Mike Price, counsel for Seymour and Fourth Amendment Center litigation director at the National Association of Criminal Defense Lawyers, is launching the first ever constitutional challenge to keyword warrants in America by seeking to suppress the evidence provided by Google. Backing him up in Colorado State Court is an amicus brief signed by internet privacy advocacy group the Electronic Frontier Foundation (EFF). Price and the EFF shared their filings with Forbes as they were being registered with the court.
If a judge agrees with Price, it could lead to the three alleged assailants going free. “The government has been clear that before they got this keyword search warrant, they didn’t have any idea who did this,” Price says. Because the prosecutor’s case is all based on the knowledge gained from the keyword search, he explains, it’s possible none of the state’s evidence can be used at trial.
While success might mean the killers go unpunished, Price and other privacy advocates argue that it’s more important to protect the privacy of every person in the country. That’s because unlike most search warrants, keyword searches don’t target a specific person or property. Instead, they could potentially hand law enforcement data on dozens, hundreds or even thousands of people unrelated to the case at hand. “No other warrant … could authorize the search of every house in America,” says Price. “And no warrant should be able to compel a search of everyone’s Google search query.”
There are First Amendment issues too, Price says, as freedom of speech could be violated if the government is getting information on what innocent people are searching for in private. Keyword search warrants could, Price argues, have a “chilling effect” on how people use Google.
That may sound far-fetched, but given how attached Americans are to their devices and the internet, the bits and pieces of search queries people enter can add up to build a surprisingly complete picture of their private life. As the EFF’s amicus brief reads, “Over the course of months and years, there is little about a users’ life that will not be reflected in their search keywords, from the mundane to the most intimate. The result is a vast record of some of users’ most private and personal thoughts, opinions, and associations.”
Despite these concerns, Google is legally bound to respond to search warrants, though it could, if it chose, push back with its own appeals or join amicus briefs in cases involving rivals like Microsoft and Yahoo. So far, the company has declined to do so, though has denied government attempts to get more detailed Google subscriber information on those who searched particular terms, as it did in the arson case. Google had not responded to a request for comment at the time of publication.
Only a handful of other examples of keyword warrants have been made public. Last year, Forbes revealed a 2019 order that was similar in nature to the one in the Denver arson. It saw Wisconsin investigators demand Google provide information on anyone who had searched for a sex trafficking victim’s name, two spellings of her mother’s name and her address during a 16 day period. There were also three keyword warrants served on Google, Microsoft and Yahoo in the investigation into the serial Austin bombings in 2018, which left two dead. These warrants were potentially the broadest on record, asking for information on individuals who searched for various addresses and terms associated with bomb making, such as “low explosives” and “pipe bomb.”
The Supreme Court decision to overturn the guaranteed right to an abortion across the U.S. has also made keyword warrants even more of a concern, warns Jennifer Lynch, surveillance litigation director at the EFF. She envisioned a scenario where police asked for identifying information for anyone who searched for the address or telephone number of an abortion provider.
Despite their successful use in prosecuting criminals, critics argue that keyword warrants simply put too much power in the hands of government investigators, adds Lynch. “A search like this, where you just have no suspects and you don’t know who you’re going to end up with, you really run the risk that a person is targeted based on an officer’s belief that their internet search could be somehow linked to the case,” she says.