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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:00:28:20 - 00:00:49:48
Unknown
Hello and welcome to the Experto Crede podcast. I'm your host, Maureen Lawson, online editor of the Minnesota Law Review, volume 107. Today with me, I have Helen Winters, no uncommon editor of the Minnesota Law Review, volume 107, and we're going to be discussing her published note, an unreasonable Expectation of privacy analysis of the Fourth Amendment when applied to keyword search warrants.
00:00:49:51 - 00:01:13:48
Unknown
Thanks so much for being on the podcast with me today. I'm really excited to be talking about your piece. Thanks for having me. Before we start, I'd love for you to talk a little bit more about your note, topic and argument. Yeah, so my note is about the Fourth Amendment when applied to keyword search warrants. And that's a type of reverse search warrant, which is kind of new to Fourth Amendment jurisprudence.
00:01:13:48 - 00:01:39:00
Unknown
But it's a warrant where the police first ask for like large groups of information. So for example, for the keyword search warrants, they'll ask for large swaths of like anybody who searched any given term or terms at any given time in any given location. And then from there they whittle it down to one suspect rather than like starting with the source box.
00:01:39:00 - 00:02:06:44
Unknown
So that's why it's called reverse. And my note addresses the keyword reverse search warrants, which is a subset of that. And basically what it's about is the current Fourth Amendment jurisprudence doesn't necessarily cover these new techniques. So it's falls under the third party doctrine exception because that data is held by third parties. But it's also technically falls under the protection of the Fourth Amendment.
00:02:06:51 - 00:02:32:29
Unknown
And my note kind of analyzes that's the most recent case. Carpenter and talks about how this whole leaves lots of different technologies able to be used by law enforcement and that a legislative solution is needed. I thought your note was super interesting. Can you talk a little bit about your process for coming up with your idea, and what motivated you writing about the Fourth Amendment and the keyword search warrants?
00:02:32:34 - 00:02:54:05
Unknown
Yeah, so I've always been interested in like IP and technology, but I'm not going into patent law. So I wanted to really kind of address that with my note. And I looked into new technological ideas when I was coming up with my note topic. And I initially pitched geofence warrants as my topic, but one note had just come out on that.
00:02:54:10 - 00:03:15:58
Unknown
So I was talking with my and CE when I was a staffer, and she suggested that I look into this topic. So I did, and I didn't really know my angle. And then my advisor suggested I look at Carpenter. So after looking at that, I kind of decided to merge the two of them together. And that's where my note came from.
00:03:16:03 - 00:03:42:58
Unknown
And what was the most interesting and difficult part of the research process? I think so I hadn't taken criminal procedure before I wrote this note. I never really intended to write a criminal procedure note, and then it just sort of happened. So I think the hardest part was kind of like teaching myself all of that and making sure that I was doing that part of it justice, and that I wasn't missing any actual legal analysis or saying something wrong.
00:03:42:58 - 00:04:11:41
Unknown
So there was a lot of back and forth between me and my advisor on like, what was important? What was it like if, like, I was going to dress probable cause at all or just kind of cabinet, just like this initial part of the analysis, and it was really hard to kind of get through that research block. But then once I figured it out a little bit more, it was a lot easier, because the part that I didn't need that background for was like the actual keyword searches and the third party doctrine and all of that.
00:04:11:41 - 00:04:39:55
Unknown
Something that really struck me in your note is you talk about how searching for an address for Planned Parenthood could potentially be incriminating, just with the new laws that have come out. And with this keyword search warrants, this paper, this part of your paper really struck me because there is this sort of implication that the use of reverse keyword search techniques could be used as a preventative measures measure, potentially in the future, rather than sort of something after the fact.
00:04:39:58 - 00:05:00:29
Unknown
After an obvious crime or a crime has been committed. What do you see as some of the consequences of this type of reverse keyword searching? If it's not addressed like you propose in your in your note? So I think the most obvious like pressing consequence and kind of going back to your question is about the abortion cases and those kind of rights post.
00:05:00:29 - 00:05:23:58
Unknown
Dobbs a lot of legislation since that case has come out that's been pitched in the state legislatures has come up with that. A lot of amicus briefs from different civil rights groups have come out, like speaking against the use of keyword search warrants simply because of their potential for, like, abortion cases. And so I think that's like really exemplar of the issue.
00:05:24:03 - 00:05:42:53
Unknown
We've heard of women who have the potential to get pregnant, like deleting their period tracking apps immediately post jobs out of fear of like, digital privacy concerns. And just that, like tracking of their cycle could be used against them, even though, there's not necessarily like any actual evidence of abortion, like simply from a period tracking app.
00:05:42:53 - 00:06:03:51
Unknown
And so I know that that's definitely a concern. But turning back to search histories, it's already been used to convict pregnant women for the death of their fetuses in cases that involve more than just an address of, say, like you search for the name of an abortion drug online and they already like, there's some speculation that that woman might have gotten an abortion.
00:06:03:51 - 00:06:28:48
Unknown
And so then they use that search data to show, like she was thinking about it and imply, like different kinds of intent and like, mindset. I think that that's really dangerous. And I'm sure in certain areas there's a stigma around like just going to a clinic. So if you were to search an address, like I suggest in my note, then I think that would hold a lot more weight than in other areas, which is also dangerous because, you know, like playing parenthood provides so much more than just abortion.
00:06:28:48 - 00:06:49:00
Unknown
So if you're just assuming that search is related to clinics immediately means an abortion, it makes it so much harder for the health care they need. And like in the Seymour case, the crux of the evidence and the motion of the suppress is like simply just on the address of the home where the arson occurred. So I think that shows like it's not too much of a stretch to assume that.
00:06:49:00 - 00:07:15:22
Unknown
But I mean, at this time, like, there's not a lot of cases that show like just like that one search can do that. So I think it just depends on how big the use of keyword search warrants gets. But it is interesting. I look this up. Google recently released data showing that two of the three states that lead the nation in, like geofence warrants just another type of research warrant where Texas and Florida, which are like some like the biggest anti-abortion state.
00:07:15:23 - 00:07:48:22
Unknown
So like signals are not afraid to use the kind of methods. So I think it'll be something to watch. And we'll talk a little bit more about what your note suggests. Hopefully what you suggest would kind of help curtail some of those pretty big impacts that are potential and somewhat happening now as well. Like you mentioned, something that I was thinking about when when reading your note is, do you see a potential for people who are very technologically savvy or who understand how to mass their IP addresses, being able to escape these warrants?
00:07:48:22 - 00:08:06:27
Unknown
And then just kind of you mentioned that innocent people who are not the direct kind of purpose of those searches would then be the only ones kind of at issue in those warrants. Is this something that you encountered at all, or is there something that has been mentioned at all in kind of the research that you did? Yeah.
00:08:06:27 - 00:08:31:03
Unknown
So I don't actually really I didn't see much discussion of use of like VPNs or proxy servers, which are the two main methods you could use to disguise your IP address, which I think is interesting because I feel like VPNs are pretty common to use, especially in like a workplace setting. So maybe the assumption is that people aren't using them on their personal devices and definitely, probably not on their phones.
00:08:31:08 - 00:08:50:08
Unknown
But there are still downsides to those protections, like the proxy server. So the way that works, it's like if I were to log on to a proxy server on my laptop, my laptop has an IP address, and then the proxy gives a fake IP address with the server itself has. But you'd still be tractable. It would just be like on the IP address of your proxy.
00:08:50:12 - 00:09:08:44
Unknown
You know what I mean? So like there's like a little bit you're still trackable I don't know, like how be able to link that to you. But if you were to log in to your personal accounts on that proxy, then they could link it. I think VPNs are definitely the best option to protect yourself because it doesn't have that association.
00:09:08:48 - 00:09:31:48
Unknown
I honestly haven't seen like a lot of discussion on it, but I'm sure it'll come up for sure and then kind of off of that. Do you think that it would be then possible for this reverse keyword searching to implicate just people who are innocent just by randomly searching? Maybe something at issue? I'm I'm kind of thinking of doing some legal work.
00:09:31:48 - 00:09:56:10
Unknown
I researched some pretty weird things on Google when I'm trying to come up with arguments or defend clients or anything, and I'm sure there's the potential that I come up in some of these searches just because of what I'm searching for. Work. Do you see that as a potential in the future? Yeah, I think you could definitely get in on probably like the first step of a keyword search warrant when they want, like everybody who searched, like certain terms or addresses.
00:09:56:10 - 00:10:20:34
Unknown
If you just like, like, say you're working, like, literally on the case and you're one of the people that search whatever they're looking for in the case, like obviously you're going to turn up there, but I think that you'd probably get if you were a lawyer in that instance, you'd probably get thrown out eventually of like that group, and you eventually lead to like, okay, like now that I'm going to get more information on like this search, or maybe they're not the person I'm looking for.
00:10:20:34 - 00:10:50:44
Unknown
So I don't necessarily know if you'd be like, go so far as to be convicted, but you're definitely not completely out of the pool. In your note, you mentioned the idea that a lot of people are concerned about third parties getting access to their information, but they're not nearly as concerned about the government having access to that information and then not connecting this third party, giving information to the government, which is what part of what you're discussing in your note.
00:10:50:48 - 00:11:13:36
Unknown
And then you mentioned as a lawyer, you could be part of that first pool of potential people whose information is seized in these warrants. Do you think that that is what people would be concerned about in general, or what do you see as the concern people should have with the government getting their information from those third party sites?
00:11:13:41 - 00:11:46:00
Unknown
I think that people just don't necessarily realize, like how closely related the two are, you know, like you don't learn about the third party exception, really, until you're like in law school and like taking criminal procedure or like researching a note or something like that. Like I had no idea that, like, you didn't necessarily need a warrant to get information like from, like your phone company and like, I know it's been recently an issue where people are saying where police are asking for people's phones to be unlocked to get information in that way.
00:11:46:00 - 00:12:09:29
Unknown
And people are obviously very concerned about that. But I don't think they're making the connection that like a similar thing can be on maybe already has been done to data with third parties. So I think that's kind of like the interesting part of that statistic is that people are so concerned about the government, but they're not realizing that, like, it's all kind of the same thing.
00:12:09:34 - 00:12:35:36
Unknown
That makes sense. And in your in your note, you focus a lot on the carpenter factors and on Carpenter as one of the most recent cases, kind of addressing the third party doctrine. Which of the Carpenter factors do you think is the most important one? Thinking about reverse keyword searching? I don't know. I kind of thought about this one a little bit, and I landed on like, the inescapable and automatic collection of it.
00:12:35:41 - 00:12:55:05
Unknown
I think it'd be easy to say like depth or regulatory nature is. But in thinking about it, you have to remember, like the carpenter factors are analyzing, like when the search occurs. And for these, like technically the search is just the IP address and like not like the actual keyword data. Like that's not initial Fourth Amendment search occurs.
00:12:55:05 - 00:13:26:41
Unknown
So it doesn't really necessarily apply in the same way. But I think using devices like have IP data, unless you're one of the people that's using like the masking technologies, that's really just like a part of life. And if the search is where one is, one where the IP address is used, then that's like really inescapable. And that kind of goes back to Justice Sotomayor is quote, which don't have off the top of my head, but she basically just talks about how technology has really become like an inescapable part of life.
00:13:26:41 - 00:13:47:12
Unknown
And to to say that it's not inescapable because you can opt out of using certain technology is like to completely ignore how integrated it's become into society. So it's really easy to say like, no, I don't want to give my personal information, say like when you're like checking out and they always ask for a phone number and you're like, why do I need to give this?
00:13:47:12 - 00:14:08:10
Unknown
But you can't buy something or create an account in some cases unless you give that information. And sometimes those purchases or accounts are necessary. So I think it all and all of that, of course, is like link back to your IP address. And so I think that the inescapable and automatic collection, when you're looking at like the stage where the search occurs is most important.
00:14:08:12 - 00:14:37:10
Unknown
And do you see that factor being something that activists can be pursuing a new legislation or also just in briefs to the court if there's these issues kind of coming up, or do you think that they they should have access to kind of other methods or other arguments that would be kind of just better received? Yeah. I mean, I think that activists wouldn't necessarily be focusing on like a single factor as much was just like it as a whole.
00:14:37:10 - 00:15:14:17
Unknown
But I think the fact that it is so, like inescapable and automatic is a powerful tool for activism just because it really does cover everybody. And so, you can make like a lot of, like, really powerful arguments about the implications of such technologies that I think maybe will make their message heard or more impactful in ways where if you didn't focus on like it's broad applicability of, would it be in your note, you talk a lot about the people versus Seymour case and the motion to suppress that came out of the keyword search warrant.
00:15:14:20 - 00:15:42:00
Unknown
Has there been a response yet that you've been able to find? I just kind of wanted an update on what's been going on just because it's so new and interesting. Yeah, I found lots of updates for you. So for background, it's a case in Colorado where arsonists set fire to a house and killed the five people inside. Police engaged in a variety of technology based search techniques, including multiple reverse keyword warrants, and then a search for the home's address eventually led them to identify the victim.
00:15:42:05 - 00:16:05:56
Unknown
So see more motion to suppress the data. At the trial level, the district court upheld the legality of the warrant and basically dismissed their motion, but there wasn't any written explanation for the dismissal of the motion, which I think was interesting. And I feel like they're probably trying to not have to write that down. But Seymour's legal team appealed it, and it ended up at the Colorado Supreme Court.
00:16:06:00 - 00:16:37:10
Unknown
Exciting. There's lots of, like, Amichai briefs from various privacy organizations on the case. So they're going to weigh in specifically on the use of keyword search warrants. Like that's the issue. That's at the Colorado Supreme Court. And whether it violates the Fourth Amendment of the US Constitution and then also the Colorado Constitution. But I feel like the ruling is probably in the cabinet itself, just to the facts that he and I don't think it's going to be anything major, but it'll still be like the first case to rule on it at all.
00:16:37:10 - 00:17:08:20
Unknown
So there are updates, and hopefully it ends up in, in a way that you're kind of suggests. Yeah, I mean, I would assume so in Colorado, like I think that's probably like one of the best states for it to happen in. You talk about in your note about New York having considering legislation that addresses the issues that you're talking about in your note, what do you think other states who could potentially consider such legislation should look at in the future?
00:17:08:24 - 00:17:30:20
Unknown
Yeah, so I think New York does a good job of kind of looking at all of the reverse search techniques and not necessarily just one. I think that like piecemeal legislation on like each one individually might result in some like wacky, unsupportable legislation where say like maybe like a geofence warrant has like more hoops to jump through than necessarily like a keyword one.
00:17:30:20 - 00:17:54:39
Unknown
And then it would just kind of get into different questions of privacy protections. So I think other states, since I have written the note, have also come out with like new proposed legislation, and all of them seem to be kind of doing the same thing where it's like this big piece of legislation that covers both, like all kinds of reverse warrants, and they're all referring to them as just reverse warrants.
00:17:54:39 - 00:18:24:39
Unknown
But then within the bill, it'll have like, here's like a portion for the keyword warrants, here's portion for the geofence warrants. But the policy behind the whole bill is the same. So one example, California is now proposing legislation which would prevent California law enforcement from ordering reverse warrants from tech companies. And it would include both, which is interesting because what I mentioned before, like there's three top states that Google came out with that used geofence warrants and California's one of them.
00:18:24:39 - 00:18:46:51
Unknown
So I think it's interesting that now they're doing a turnaround, but a lot of the messaging behind the bill that the sponsors have been using, and then also like the ACLU behind it has been post Dobbs is why they're coming out with it right now. So I think that makes sense given us California and then Missouri is the other one.
00:18:46:56 - 00:19:13:41
Unknown
To ban both. And they list like a lot of different ways that a keyword warrant could be used. So it says like the bill would ban reverse keyword search warrants that compel the disclosure of records or information identifying any unnamed person who searched for a particular words, phrases, websites, or who visited a particular website through a link generated by such search, regardless of whether it's limited to geographic area or time frame.
00:19:13:41 - 00:19:37:20
Unknown
So I think it's interesting that they're already being concerned about like, how limited something might be to be allowed under the bill. They're just outright saying no. And it would also include a process to suppress information gathered in violation of the law. So say like you found out that you were implicated. Anyways, you have a right of action in court under the bill as well.
00:19:37:20 - 00:20:00:03
Unknown
So I think that's really interesting and definitely something that maybe California and New York should consider. And that right of action, that would be kind of the first step that you mentioned, where everyone's information is collected. Or is that if you make it kind of through to another step, I would assume it's probably if you make it an additional step, although I guess the whole thing would be outlined or it would be outlawed under the bill.
00:20:00:05 - 00:20:33:15
Unknown
I guess maybe one more specific language comes out. I would look at that, but it'd be interesting to see. And because we're dealing kind of with the internet, which is, you know, very movable and so broad and can kind of really easily take place from different states. How do you think kind of the state by state legislation that's happening could impact the type of policing, especially if there are such varying levels of protections in different states?
00:20:33:15 - 00:21:01:29
Unknown
I'm just thinking of potentially something is not allowed in one state, and so it's done in another state instead. I'm not sure. And maybe this is like not a problem at all. And I'm just thinking out loud. Yeah, I don't think it goes like any farther than like any normal like state by state legislation issues. I think it might, like, make people more scared in certain situations not to like, harp on it.
00:21:01:29 - 00:21:23:48
Unknown
But back to the abortion example. Say that you're like, searching for the address of an abortion clinic that's in a state that abortion is legal in. But you live in a state where abortion is illegal. And so like the people who are in the police are searching for it, are in your legal hometown state, but they see that you search the address in that one.
00:21:23:51 - 00:21:43:00
Unknown
Then maybe that could implicate providers in the state where it's legal. And so then they'd be less likely to help out of state patients, because they'd be worried that they'd be implicated and charged and anything like that. And I don't know, like the laws behind charging in that kind of way. So like maybe that wouldn't be a problem.
00:21:43:00 - 00:22:11:48
Unknown
But I think, like when it comes, that would be like the biggest issue. I guess it would be like kind of enforceability where like one state is, is a crime and one state isn't a crime. Like, how do you deal with that? How do you think that these state legislatures could potentially change the police's relationship with internet warrants in general, and specifically reverse keyword search warrants as well?
00:22:11:53 - 00:22:35:05
Unknown
Like if they're past. Yeah. Well, I guess then it would just not be. Yeah, I guess they would just not do it. But I wonder what they would replace it with, because I think that, I mean, just like technology in general is like being so relied upon in court cases and like took the law. And that's why I really wanted to do something like technological in my note, completely unrelated to reverse warrants.
00:22:35:05 - 00:22:56:12
Unknown
But like the Murdoch case, you know, like the big piece of evidence was the video that showed that, like he was at the scene on Paul's phone and like, if you weren't allowed to use that kind of technological evidence, I think, like so many crimes would go on solves, which is like, I don't know, it's hard because it's like obviously like technology is such an important part of life.
00:22:56:15 - 00:23:19:10
Unknown
Like the one side of the coin is like, yeah, it would be useful to have in some cases. But like the other side of the coin, which is like what I think my note is about is like it can go too far. So I think maybe if legislation passes, it would maybe force like police and like lawmakers to consider what else they should be thinking about and like what else should be legal versus not legal.
00:23:19:22 - 00:23:35:27
Unknown
And hopefully they'd be finding that balance between those two sides of the coin a little bit more, rather than just being totally on one side, like your note suggests. Yeah, yeah. And I think like if you have like all like the, the like the right steps, like in the Fourth Amendment, you know, like probable cause and all of that then like, sure.
00:23:35:29 - 00:24:01:53
Unknown
Yeah. You can use technology and like look at things. But the issue with like these are very search warrants is that like that's not what's happening. Right? I was definitely really struck when I read your note, because I think I definitely fell in the camp of people that didn't know that all of that could be connected. So is there anything that you want your readers and listeners to take out of your piece specifically, or something that they should consider, or kind of what next steps they should be taking?
00:24:01:58 - 00:24:21:10
Unknown
Yeah, I mean, I think it sounds scary reading it and like doing the research and like, I think what I like showing it to like friends or necessarily people who like don't come from legal background and they read it, they're like, oh my gosh, like, I'm going to go to jail. And like, you're not like, it's like the likelihood of that happening is like probably pretty low.
00:24:21:12 - 00:24:46:29
Unknown
Like I don't think it's like really like at that stage. But I guess like when you have the chance, like use a VPN, just like be careful about, like, was researching and like, like I went through and like I deleted like all my, like, old accounts on things that, like, I don't use anymore because I'm just like like I don't think it's doing like any harm, but like, I just think it's important to be really careful about, like, what data you're putting out there about yourself.
00:24:46:29 - 00:25:06:46
Unknown
And it's just a lesson like, you might think that something is private, or you might think that using like the incognito browser or something like that is private, but like, it's not. I guess that's like the biggest thing. But I also think it's like it's very unlikely that it's going to go as far as like some of the examples in my note.
00:25:06:51 - 00:25:20:15
Unknown
Great. Thanks so much for joining us today. Helen. It was great to chat with you. Thanks for having me.
00:25:20:20 - 00:25:51:24
Unknown
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00:25:51:32 - 00:25:57:34
Unknown
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