From this decision is it doubtful that a judge would grant the warrant under any circumstances -- the knowledge, for example, that there are only three results, is only available after the warrant is executed. Since no warrant would be so granted, the data that only three results are found would never be discovered.
A judge could always choose to grant the warrant, but with full knowledge that any evidence uncovered will likely be inadmissible. Even if a judge grants such a warrant, it would likely be contested by the service provider (Google), and another judge would need to sign off on it, and likely an appelate court would have to deny certiorari in order. And even if it was allowed, at trial all of this would again be litigated with a fresh set of judges, and once again have to navigate up the apellate courts, and would most likely impair or cripple the prosecution of a case where it was used.
There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.
> There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.
Is there a strong reason to assume one way or another about whether this will get reviewed by the Supreme Court (and if so, whether it would be upheld)? My understanding is that the Fifth Circuit has become a bit notorious in recent years for its rulings being a bit out of the norm and reviewed disproportionately by the Supreme Court, but I don't know enough about whether this decision might be one of those.
I don’t think that this is a fair characterization of what it means for a circuit to have one of its decisions be heard by the Supreme Court. It makes it seem like being “reviewed” by the Supreme Court is a proxy for “out of the norm,” and that’s not the test for Supreme Court review. Many times a case will be heard out of a circuit where that circuit applies the same logic as the majority of other circuits, so the claim that there is a strong correlation between the circuit and adherence to the majority view seems extraordinary on its face.
Recall that the Supreme Court generally gets to decide what cases it hears and what it’s said about the cases it wants to hear is at https://www.law.cornell.edu/rules/supct/rule_10. It basically boils down to cases where there is a conflict between any two chains of appeals (federal circuits and states). But the Supreme Court is lazy (or smart), so when there is a conflict they usually want to see how other judges think and to see if a majority vote will arise. The cases that get granted are therefore normally just from one of the last circuits to adopt a view (often one of the previously espoused views from the other circuits), and I would need to see the data to believe that there is a bias with respect to whether they adhere to the majority view (if it exists).
> I don’t think that this is a fair characterization of what it means for a circuit to have one of its decisions be heard by the Supreme Court. It makes it seem like being “reviewed” by the Supreme Court is a proxy for “out of the norm,” and that’s not the test for Supreme Court review
My intent was for the statement of their decisions being considered extreme and their decisions being reviewed often to be two separate statements, the former an opinion I've seen often and the latter a statistical phenomenon. The latter doesn't imply the former, but I don't think it would be surprising that the former correlates with the latter.
That's only really true in an exceptionally antagonistic environment.
If your house were burned down, and the police canvassed your neighbors do you expect your neighbors to stonewall the police or help you, by helping the police?
In the same scenario you would expect the tower owner to try and help solve that crime of their own volition. So knowing some of the requirements should be attainable in any civilized society.
Concretely, most of the time, Google is the executor of these warrants. Now it's totally possible that you will find a Google employee sympathetic to law enforcement who is willing to kick off a flume job to isolate the users who were in the vicinity.
But that request is not going to make it through normal channels. And most of the customer data (especially PII) is very tightly controlled, so likely no such person exists who can run that job without authorization, and even if they did, they would be immediately fired afterwards, and possibly subject to criminal prosecution for violation of their user's privacy, depending on jurisdiction.
I'll admit to disliking the color of your curtains and they'll find the jerrycan for my lawnmower and suddenly I'm the prime suspect for arson. Sorry neighbour I'm not talking to the cops, hope you have insurance.
A judge could always choose to grant the warrant, but with full knowledge that any evidence uncovered will likely be inadmissible. Even if a judge grants such a warrant, it would likely be contested by the service provider (Google), and another judge would need to sign off on it, and likely an appelate court would have to deny certiorari in order. And even if it was allowed, at trial all of this would again be litigated with a fresh set of judges, and once again have to navigate up the apellate courts, and would most likely impair or cripple the prosecution of a case where it was used.
There might be exigent circumstances where the public needs outweigh the prosecutorial damage -- preventing an imminent bombing or something, but for routine criminal matters the geofence warrant is all but dead.