In a way, this story is the worst kind of nightmare for anyone who puts their money in a bank – but there is a larger issue at stake that concerns our constitutional rights. Read on.
Police in Edina, Minnesota are investigating a fraudulent bank transfer, and they are flouting the U.S. Constitution in the process. An unknown man pretending to be a bank customer named Douglas called the bank in January and requested a wire transfer of twenty-eight thousand five hundred dollars. When the bank asked for proof that the man was, in fact, Douglas, the caller supplied the appropriate information and faxed a copy of a fake passport. The photo was not of the victim, but rather another man who looked to be of similar age. The forgery passed, however, and the money was wired from a line of credit to a savings account, then to a Bank of America account.
While investigating the fake passport, Edina police conducted internet searches for the victim’s name in a variety of specific forms. Eventually, the police found that four different iterations of their search returned images of the man in the fake passport. These four terms returned these images on Google, but not Bing or Yahoo. To move the investigation forward, Google was subpoenaed to release user information for anyone in the Edina area who searched for any of the four included terms. Up until this point, the police acted righteously and within their authority. It was only when they pushed Google to violate both Google policy and the Fourth Amendment that they stepped outside the bounds of the law.
What happened to the bank customer was terrible. A thief violated Douglas’s right to do with his money what he wants. However, the violation of the bank customer’s rights by the criminal cannot be used as justification by the police to disregard the rights of others.
Google positions itself as a company that protects user privacy, and they remained true to that ideal by rejecting the subpoena. Google makes their position clear in their Transparency Report:
Of the three types of ECPA legal process for stored information, the subpoena has the lowest threshold for a government agency to obtain. In many jurisdictions, including the federal system, there is no requirement that a judge or magistrate review a subpoena before the government can issue it. A government agency can use a subpoena to compel Google to disclose only specific types of information listed in the statute. For example, a valid subpoena for your Gmail address could compel us to disclose the name that you listed when creating the account, and the IP addresses from which you created the account and signed in and signed out (with dates and times). Subpoenas can be used by the government in both criminal and civil cases.
On its face, ECPA seems to allow a government agency to compel a communications provider to disclose the content of certain types of emails and other content with a subpoena or an ECPA court order (described below). But Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure.
Subpoenaing Google for the user information of over fifty thousand people is well outside the realm of reasonable search and seizure. Google was right to deny the subpoena, but the Edina police were not satisfied with that answer. Investigators requested a warrant that ordered Google to turn over the names, addresses, telephone numbers, dates of birth, social security numbers, email addresses, payment information, account information, IP addresses, and MAC addresses of the people who requested one of those four terms during a specific period.
While this should stand out to anyone as a violation of the Fourth Amendment, consider for a moment the data that Google is required to share based on their own policy. Even in the case of a warrant, Google is only required to turn over some data for each product. The proposed warrant asks for an outrageous amount of information. Google would likely reject this warrant because it would be too broad even if applied to only one person, already identified by username. The warrant calls for the identification by search records of potentially thousands of people. Even if Google were inclined to honor even a small part of this warrant, they would have no guideline to go by, as registration is not necessary for the use of the Google search engine.
Anyone who has read either the Fourth Amendment or Google’s policy even once should know better than to grant such a vague warrant, yet Judge Gary Larson signed it. Then the detective with sixteen years of experience that includes five years on the Minnesota Financial Crimes Task Force, David Lindman, served the unconstitutional warrant to Google. It remains to be seen whether Google will reject the warrant as well.
As unlikely as it is that Google will be required to blatantly disregard the Fourth Amendment and their own policy based on that very statute, the real danger here is that an actual American judge issued this warrant. This utter disregard for the rights of Edina citizens is a clear violation of Judge Larson’s oath of office. Like so many other public servants, Judge Larson swore to support the U.S. Constitution. So long as the people of Minnesota have Judge Larson as their statewide senior judge, their liberty is at stake.
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