They’d authored nearly two dozen search warrants since the Aug. 5, 2020, fire with no luck. But on Nov. 19, 2020, Denver police served a warrant asking Google to turn over information about anyone who had searched the address of the burned house in the Green Valley Ranch neighborhood during the 15 days prior to the fire.
Google complied. The tech giant produced information about five users in Colorado that made the search, including 16-year-old Gavin Seymour. It marked investigators’ first big break in the case and provided the evidence they needed to build a case against the three teens they arrested two months later in connection to the crime.
More than a year after Seymour’s arrest, his attorneys are trying to block prosecutors from using that evidence at trial by challenging the legality of the search warrant, which they called a “massive fishing expedition” that violated millions of peoples’ right to privacy.
This type of search — called a reverse keyword search warrant — is concerning because it acts in the opposite direction of more common warrants, the attorneys argue. Instead of asking a company for information about an identified person of interest, police are asking a company to rifle through information about a wide swath of people who have no demonstrated connection to the crime.
“It was a modern-day digital dragnet, conducted by the world’s largest search engine company, at the government’s direction,” Seymour’s attorneys argued in their motion to suppress the evidence. “The government commandeered Google to search through nearly a billion private accounts, in addition to the billions of other searches conducted by users who were not logged in. If the government had probable cause to search one account, it would have done so. It did not. Instead, it searched billions to determine if any of them contained data of interest. The warrant is the very definition of overbroad, and this court should find it unconstitutional.”
The legal challenge of the search requested by Denver police is one of the first of its kind in the country and is being watched by digital privacy groups nationwide, said Michael Juba, one of Seymour’s attorneys.
Reverse keyword search warrants are likely becoming more common, as are other types of broad searches of electronic data, according to a brief filed by the Electronic Frontier Foundation in support of Seymour’s motion.
“Just as no warrant could authorize the search of every home in America, no warrant can compel a search of everyone’s Google queries,” Seymour’s motion states.
"THE LYNCHPIN IN THEIR CASE“
The argument over the warrant exemplifies how our technological abilities often evolve faster than our laws, policies and ethics, said Steve Beaty, a professor of computer science at Metropolitan State University of Denver who studies Internet privacy.
“We’ve long tried to balance the right to privacy, explicit and implicit, with the ability to pursue justice for those who break our laws,” he said. “It’s a moving target.”
The warrant allowed investigators to identify Seymour, Kevin Bui and a third teen as people of interest in the arson, which drew international media attention. The warrant was an act of desperation by investigators who hadn’t made progress on the case in months, Juba said.
“This is the lynchpin in their case,” he said. “All the information they have on the suspects flowed from this single warrant.”
After obtaining the search information, investigators with the Denver Police Department and the U.S. Bureau of Alcohol, Tobacco and Firearms requested a trove of data related to the three teens, including social media accounts, Google accounts, iPhone messages and cell phone location data. They eventually used location data to show the teens’ phones moved from Lakewood to the Truckee Street area at the time of the fire.
After his arrest, Bui told investigators he set the house on fire because he wanted revenge after he was robbed of his phone while trying to buy a gun. He then tracked the phone using the “Find my iPhone” function and believed it was in the Truckee Street house. Bui named Seymour and a third teen as his accomplices, according to police.
Bui and Seymour, who were both 16 at the time of the crime, each were charged as an adult with 60 counts, including murder, in connection with the fire that killed five members of a Senegalese family: 29-year-old Djibril Diol, 23-year-old Adja Diol, their 2-year-old daughter Khadija, 25-year-old Hassan Diol and her 6-month-old daughter, Hawa Baye.
A third teen faces criminal charges as well but his case is proceeding in juvenile court because he was 15 at the time of the crime. He has not been publicly identified because he is charged as a juvenile.
Denver District Court Judge Martin Egelhoff is scheduled to hold a hearing Aug. 19 about the warrant and will decide whether to suppress the evidence the warrant produced. If he suppresses the keyword search evidence, that means it can’t be used at trial nor can any evidence that was produced because of the keyword search. Such a ruling would significantly damage prosecutors’ case.
Spokespeople for the Denver Police Department and the Denver District Attorney’s Office declined to comment on the motion because the criminal case is ongoing.
Denver police spokesman Doug Schepman on Thursday said the department does not track how many reverse keyword search warrants officers have requested because the records management system does not track aggregate data about search warrants.
“THE EXPECTATION IS THAT IT'S PRIVATE”
Beyond the arson case, keyword searches could carry dangerous consequences in a wide variety of arenas, Juba said. Police could use similar warrants to see who searched information about a controversial protest or for an address of an abortion provider. Search history can reveal peoples’ most intimate thoughts and concerns, his motion argues. Searches like “psychiatrists in Denver”; “is my husband gay”; or “herpes treatment” reveal telling details.
“If you go up to anyone on the street and ask them to reveal their search history, almost everyone would be taken aback,” Juba said. “The expectation is that it’s private. People search things they don’t tell their partners about, that they don’t tell their families about.”
People who still expect their Internet searches to be private are naïve, Beaty said. Google explicitly states that the company complies with search warrants and subpoenas.
Other law enforcement agencies have sought, and received, warrants for keyword searches.
Federal investigators working on a Wisconsin sex abuse case in 2019 asked Google to turn over information about anyone who searched the victim’s name, the name of the victim’s mother or the victim’s address. In another case, law enforcement investigating serial bombings in Texas requested information about people who searched specific addresses and for information about bomb-making.
U.S. agencies submitted 50,907 requests for information about 115,594 Google accounts in the first six months of 2021, Google data shows. The company provided data in 82% of those requests, which include search warrants, subpoenas and other court orders.
State lawmakers in New York introduced a bill that would ban reverse keyword search warrants as well as geofencing warrants, which require tech companies to turn over information about any devices in a specific area in a defined timeframe. If passed, New York would be the first state to ban such warrants, according to TechCrunch.com. Several major tech companies, including Google, pledged support for the bill.
There are other emerging technologies that also prompt similar questions about expectations of privacy, Beaty said. Many cellphones use fingerprint and facial recognition software. Smartwatches track heartbeats. Cars track location data, speed and the pattern of doors opening and closing. Should law enforcement have access to that data en masse?
“I don’t think there’s enough prior rulings in many areas to say this is legal and this is not,” Beaty said. “We all want to see criminals brought to justice. I think the question becomes: At what cost?”
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