By Albert Fox Cahn and Julian Melendi
For millennia, we’ve been told that asking questions was the path to enlightenment. But in the surveillance age, it might land you in jail. That’s the danger of a new search tactic that police are increasingly turning to in their constant campaign to transform our phones and devices into evidence against us: keyword warrants. One Denver court may soon rule on whether they can continue as a policing tactic—and in the post-Roe era, the wrong decision could put abortion seekers in unprecedented danger.
Police have used web browser history and search engine data in their investigations for about as long as the data has existed, but keyword warrants are different—a digital dragnet to find every user who searches for a specific person, place or thing. We don’t know how often they are used, but we the number of publicly known examples is only growing. And soon a Denver judge will provide one of the first decisions on their constitutionality.
As far back as 2009, police would ask Google for a user’s search history for use in investigations, viewing a single account at a time. Where there was probable cause that someone had committed an offense, officers could compel Google to provide a list of every search a user had entered. And when individuals weren’t logged into Google, they could still search by their individual IP address, the unique identifier every internet-connected computer uses to communicate with servers at companies like Google.
But even as Googling became an unconscious reflex of modern life, the approach was the same: Identify a suspect, provide probable cause, get a warrant. What is so terrifying about keyword warrants is that they skip step one, transforming a targeted (albeit invasive) search of one person into a search of us all.
We don’t know for sure when keyword warrants were first invented, but the earliest public example came from Wisconsin in 2017. A year later, Texas officials went on to use the same tactics. In both cases, investigators asked Google for detailed information on every user who entered certain search terms, such as the names and addresses of victims, regardless of if individual users were suspected of wrongdoing. Federal officials later brought keyword warrants to public attention investigating alleged witness tampering in the federal racketeering case against disgraced singer R Kelly. With keyword warrants, officers demand that Google identify everyone who’s searched a specific address, name, or set of words.
And that brings us to the Colorado case.
In the summer of 2020, three teenagers in a Denver suburb were charged with alleged arson in a house fire that claimed five lives, all recent immigrants from Senegal. Community activists said the apparent arson was part of the national hate crime surge under then-President Donald Trump. While police would never charge a hate crime in the case, they would make arrests. Thanks to a keyword search warrant for every person who had Googled the address of the arson, three minors—two 16-year-olds and one 15-year-old—were charged with the murders. Lawyers for one of the defendants are challenging the constitutionality of the keyword search warrant on grounds it violated the Fourth Amendment’s protection against unreasonable searches.
In this case, under facts this gruesome, many might think that the keyword warrant is reasonable. How can the right to be safe against unreasonable search and seizure compare to human life? But the impact goes far beyond this one case. Yes, it can be helpful for identifying everyone looking for directions to a particular house, but it’s an even better way to identify everyone researching information on a religion, political belief, or even medically accurate information about abortion.
And in the post-Roe America, the same technique that was used in Denver can be used to identify and track those searching for abortion-inducing drugs like mifepristone, misoprostol, and other abortifacients, as well as those providing medical care.
The solution is simple: ban keyword warrants. While the courts may one day reach that conclusion, they are slow to respond to ever-evolving technical threats. And with Congress gridlocked by partisanship, particularly on abortion, it falls to state law makers to act. One measure we helped introduce in New York would help by outlawing keyword warrants and their better-known cousin geofence warrants, as well as police data purchases.
But companies can act, too. If privacy-protective search engines like DuckDuckGo got a keyword warrant, they’d simply ignore it. Not because their executives want to go to jail, but because they simply don’t have the data being demanded. There is no compelling reason as to why other companies cannot do the same and implement a privacy-by-design standard. Google’s and other tech companies’ refusal to implement proper privacy protections is accelerating what is sure to become a human rights catastrophe.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.