May 28, 2024

Constitutionality of police using keyword warrants challenged in Pa. case

The state Supreme Court has been asked to use an appeal in a central Pennsylvania rape case to declare unconstitutional keyword warrants used by police to obtain information from internet search engine databases.

The Electronic Frontier Foundation (EEF), the National Association of Criminal Defense Lawyers (NACDL), and the Pennsylvania Association of Criminal Defense Lawyers (PACDL) did so Friday in a friend of the court brief in the appeal of John E. Kurtz, 49, of Shamokin.

The former state prison guard is appealing his 2021 conviction of rape, attempted rape, kidnapping, attempted kidnapping and other charges involving five women between 2012 and 2017 in Northumberland, Columbia and Montour counties.

Kurtz, who police called a serial rapist, was designated a sexually violent predator and sentenced to 59 to 270 years in state prison.

Keyword warrants compel search engines to hand over the personal data of users who have searched specific terms, within a certain timeframe, sometimes within a certain area.

In November the Supreme Court agreed to hear Kurtz’s contention the Superior Court panel that upheld his conviction erroneously concluded:

  • An individual does not have a reasonable expectation of privacy in his or her electronic content, particularly in his or her private Internet search queries and IP address.
  • Probable cause may be established to support a search warrant to Google requesting the content of an individual’s private Internet search queries where the suspect is unknown and no evidence is presented establishing that Google was used in the planning or commission of the crime.

The Supreme Court in its order states it has not previously ruled on those issues.

It is the position of EEF and the others that keyword warrants let police indiscriminately sift through search engine databases and so not target specific people or accounts.

They argue those warrants require a provider to search its entire reserve of user data to identify any and all users or devices who searched for words or phrases specified by police.

Police generally have no identified suspects when they seek such a warrant; rather, only an investigator’s hunch that the perpetrator might have searched for something related to the crime, they claim.

Internet search data was obtained in the Kurtz case during the state police investigation into the July 19, 2016, kidnapping and rape of a Northumberland County woman while her husband was at work.

On Sept. 14, 2016, police obtained a search warrant directed to Google Inc. for records of searches made for the woman’s name or home address during the week preceding the incident.

Google returned a report that identified an Internet protocol (“IP”) address as having conducted two searches of her address several hours before the attack.

State police later determined through requests submitted to the American Registry of Internet Numbers and Kurtz’s telecommunications service provider that the IP address corresponded to his.

Kurtz, in a police interview following his arrest, admitted committing the kidnapping and rape. He also incriminated himself in incidents with four other women.

In the appeal of his conviction, Kurtz contended the Google search warrant lacked probable cause.

He also argued he had a reasonable expectation of privacy over his Google search queries as it is nearly impossible to participate in contemporary society without conducting Internet searches.

The Superior Court panel found there was probable cause for the Google search warrant and addressed the privacy issue this way:

By typing in his query into the search engine and pressing enter, Kurtz affirmatively turned over its contents to Google and voluntarily relinquished his privacy interest in it.

The EEF brief cites the arrest in which the investigator stated it was believed the perpetrator was very familiar with the victim and she and her residence were not randomly targeted.

Since it is likely Kurtz knew the victim, police would not need a search engine to identify her or her house, it states.

Even if the Superior Court panel was correct the warrant would uncover the identity of the attacker, it is insufficient to provide probable cause to support a search of an unknown number of users and their search queries, EEF contends.

“Keyword search warrants are totally incompatible with constitutional protections for privacy and freedom of speech and expression,” said EFF surveillance litigation director Andrew Crocker.

“Keyword search warrants are digital dragnets giving the government permission to rummage through our most private information, and the Pennsylvania Supreme Court should find them unconstitutional,” said NACDL Fourth Amendment Center litigation director Michael Price.

The Colorado Supreme Court in September 2023 became the first in the country to rule on the constitutionality. It said upheld the warrant, finding the police relied on it in good faith, according to the EFF, which filed two amicus briefs and was heavily involved in the case.

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