Meghan O’Connor and Ashleigh Giovannini Outline Evolving U.S. Geofence Technology Legal Landscape in Article for OneTrust DataGuidance
Quarles & Brady attorneys Meghan O’Connor and Ashleigh Giovannini wrote an article for OneTrust DataGuidance about the legal implications in the United States of geofence technology and how some states are starting to address the issue. OneTrust DataGuidance is a global privacy intelligence and research platform that monitors regulatory developments in data privacy.
Geofence technology makes it possible to set up a virtual perimeter around a specific geographic location using tools such as radio frequency identification (RFID), Wi-Fi, GPS, Bluetooth, and cellular data, applications and software programs. It can be used to track an individual’s location for a variety of reasons, some of which generally considered relatively harmless and some more controversial.
O’Connor, a partner who chairs the firms Data Privacy & Security team and is Milwaukee office chair of the Health & Life Sciences Practice Group, and Giovannini, a member of both teams, address some of the key concerns related to geofence technology in the article, including the use of data from geofence technology for government and law enforcement investigations.
An excerpt from the article:
Obtaining identifying information from geofence technologies often decreases government investigative efforts and resource allocation to apprehend alleged criminals. Criminal defense attorneys, however, push back on the constitutionality of these warrants under the Fourth Amendment, asserting that law enforcement cannot state with particularity what persons or items should be seized when requesting information identifying individuals who have visited a particular virtual perimeter.
Law enforcement must also demonstrate probable cause to obtain and execute a geofence warrant. 'Probable cause' means 'a fair probability that contraband or evidence of a crime will be found within a particular place.' Probable cause is a flexible standard. Privacy advocates argue that geofence warrants lack necessary particularity and are insufficient to raise a fair probability that evidence of a crime exists at a particular location because probing device data obtained within a particular geofence will potentially yield millions of results. Indeed, the likelihood of finding some evidence of a crime within a particular geofence is higher than if law enforcement were required to only search data relevant to the crime being investigated. Further, advocates argue, that issuing geofence warrants empowers law enforcement to proactively target individuals present within a particular virtual perimeter at a given time for prosecution.