Colorado Supreme Court Upholds Keyword Search Warrant

By Jennifer Lynch and Andrew Crocker

Today, the Colorado Supreme Court became the first state supreme court in the country to address the constitutionality of a keyword warrant—a digital dragnet tool that allows law enforcement to identify everyone who searched the internet for a specific term or phrase. In a weak and ultimately confusing opinion, the court upheld the warrant, finding the police relied on it in good faith. EFF filed two amicus briefs and was heavily involved in the case.

The case is People v. Seymour, which involved a tragic home arson that killed several people. Police didn’t have a suspect, so they used a keyword warrant to ask Google for identifying information on anyone and everyone who searched for variations on the home’s street address in the two weeks prior to the arson.

Like geofence warrants, keyword warrants cast a dragnet that require a provider to search its entire reserve of user data—in this case, queries by one billion Google users. Police generally have no identified suspects; instead, the sole basis for the warrant is the officer’s hunch that the suspect might have searched for something in some way related to the crime.

Keyword warrants rely on the fact that it is virtually impossible to navigate the modern Internet without entering search queries into a search engine. By some accounts, there are over 1.15 billion websites, and tens of billions of webpages. Google Search processes as many as 100,000 queries every second. Many users have come to rely on search engines to such a degree that they routinely search for the answers to sensitive or unflattering questions that they might never feel comfortable asking a human confidant, even friends, family members, doctors, or clergy. Over the course of months and years, there is little about a user’s 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.

In the Seymour opinion, the four-justice majority recognized that people have a constitutionally protected privacy interest in their internet search queries and that these queries impact a person’s free speech rights. The federal Supreme Court has held that warrants like this one that target speech are highly suspect so courts must apply constitutional search-and-seizure requirements with “scrupulous exactitude.” Despite recognizing this directive to engage in careful, in-depth analysis, the Seymour majority’s reasoning was cursory and at points mistaken. For example, although the court found that the Colorado constitution protects users’ privacy interests in their search queries, it held that the Fourth Amendment does not due to the third party doctrine, because federal courts have held that there is no expectation of privacy in IP addresses. This overlooks the queries themselves, which many courts have suggests are more akin to location information that was found to be protected in Carpenter v. United States. Similarly, neglected to address the constitutionality of Google’s initial search of all its users’ search queries because it found that the things seized—users’ queries and IP addresses—were sufficiently narrow. “Finally, the court merely assumed without deciding that the warrant lacked probable cause, a shortcut that allowed the court to overlook the warrant’s facial deficiency and therefore uphold it on the “good faith exception.”

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If the majority had truly engaged with the deep constitutional issues presented by this keyword warrant it would have found, as the three-justices dissenting on this point did, that keyword warrants “are tantamount to a high-tech version of the reviled ‘general warrants’ that first gave rise to the protections in the Fourth Amendment.” They lack probable cause because a mere hunch that some unknown person might have searched for a specific phrase related to the crime is insufficient to support a search of everyone’s search queries, let alone a specific, previously unnamed individual. And keyword warrants are insufficiently particular because they do next to nothing to narrow the universe of the search.

We are disappointed in the result in this case. 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 healthcare providers, or information about psychedelic drugs. Even searches that refer to crimes or acts of terror are not themselves criminal in all or even most cases. Dragnet warrants that target speech have no place in a democracy, and we will continue to challenge them in the courts and to support legislation to ban them entirely.

Source: EFF

Jennifer Lynch is EFF’s General Counsel. Through this role, she advises EFF on matters related to 501(c)(3) status, employment, contracts, lobbying, immigration, IP, defamation, and just about any other legal issue that might arise for the leading nonprofit defending digital privacy, free speech, and innovation. She also serves as Secretary to EFF’s Board of Directors.

Andrew’s work focuses on surveillance, privacy, and cybersecurity. As Surveillance Litigation Director, he leads EFF’s legal work on issues at the intersection of technology and privacy through lawsuits and amicus briefs in state and federal courts, including the U.S. Supreme Court. He also leads EFF’s Coders’ Rights Project, which provides representation for security researchers, journalists, and hackers, who often face unwarranted legal threats and scrutiny for their work. Representative cases include challenging the constitutionality of national security letters (NSLs); working to establish that the Fifth Amendment privilege against self-incrimination protects against the compelled decryption of electronic devices; and limiting overbroad anti-hacking laws such as the Computer Fraud and Abuse Act (CFAA). He also writes and speaks about EFF’s legislative and advocacy priorities including FISA Section 702, anti-encryption proposals, location tracking and other novel surveillance techniques. He received his undergraduate and law degrees from Harvard University.

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