Powerful keyword warrants face new challenge in deadly arson case

Kristen Radtke / The Verge

A case being brought in the Colorado district court of Denver County is challenging the constitutionality of a controversial search warrant that could affect the criminalization of abortion.

A reverse search warrant allows police to start with a search term of interest and identify users who have searched it. It could mean identifying all the users who search for a specific name or address, or in a scenario that has caused anxiety recently, everyone who searches for "abortion drugs." Civil liberties groups see the warrants as a new threat to privacy, despite the fact that the technique is an important tool for identifying criminals.

The first major test of the constitutionality of those warrants will be presented by a legal challenge. Attorney Mike Price, Fourth Amendment Center litigation director at the National Association of Criminal Defense Lawyers, is arguing that all evidence derived from the warrant should be suppressed because it was used to identify the person.

In a motion to suppress evidence in the case, Price wrote that reverse search warrants are a new type of search. The Fourth Amendment and the Colorado Constitution are not compatible with them.

The case involves a tragic incident from August 2020 in which a group of teenagers allegedly set fire to a Denver house, causing a deadly blaze that took the lives of five members of a Senegalese family.

While three suspects have now been identified, legal filings seek to challenge the use of evidence derived from a search warrant, where police request information on user accounts who have searched for certain terms.

According to coverage in The Denver Post, police initially struggled to identify the attackers in the case and turned to a range of surveilance techniques to hone in on suspects

A list of 7,000 mobile devices was produced by a series of warrants for cell phone providers. After eliminating devices commonly based in the area, they obtained location data connected to the remaining phones, focusing on those that matched the movements of a vehicle seen leaving the crime scene

Three teenage suspects who have been charged with a wide range of crimes, including murder, were arrested in January 2021.

A motion to suppress

A new filing was made by Price in his capacity as counsel for one of the defendants. The filing argues that the evidence obtained from the search warrant is unconstitutional.

The motion argues that the evidence should be thrown out because the suspect would not have been identified if the reverse search hadn't taken place.

One of the broadest searches in Fourth Amendment history may be one of the searches that encompass the data of all the people who use the internet.

No court has considered the legality of a reverse search, but its constitutional defects are obvious and should have been obvious to everyone. The Fourth Amendment was designed to protect against a 21st century version of the general warrants. No warrant could authorize the search of every home in America.

The Electronic Frontier Foundation supported the motion to suppress. The EFF's surveillance litigation director and senior staff attorney argued in a post on their website that a dragnet that could encompass the data of more than a billion people is incompatible with constitutional protections for privacy and freedom of speech and expression.

The authors argue that the same techniques could be used to locate abortion seekers. Is it possible for the police to ask for the name of everyone who searched for an abortion provider in a state where it is now illegal? They write. People who searched for gender-affirming healthcare providers in a state that equates such care with child abuse should be worried.

The EFF is not the only one fighting against warrants. In 2020, a group of civil rights organizations led by the surveillance technology oversight project sent a letter to the search giant asking for more transparency on how often law enforcement agencies request data using the search giant's terms of service

The letter states that the blanket warrants create a dragnet of our religious practices, political affiliations, sexual orientation, and more. The public has a right to know about the abusive practices ofgeofence andkeyword warrants.