Google Fights Dragnet Warrant for Users’ Search Histories Overseas, but It Is Continuing to Give Data to Police in the U.S.

Google has challenged this order, eventually appealing it all the way to Brazil’s Supreme Federal Court, arguing that this kind of indiscriminate search violates the Brazilian constitution. (Google’s brief in Portuguese / English*) As Google rightly explains, the warrant is wildly overbroad. The search terms would all have been popular and common queries, and many people are likely to have used them—including citizens and journalists interested in the activities of a city councilor, or people interested in collaborating with or receiving support from the nonprofit cultural center Casa das Pretas.

This particular keyword search warrant is particularly egregious, given the sheer number of people likely caught in its dragnet, but even a more narrow warrant should trigger human rights concerns. These types of warrants inevitably sweep in users whom police have no reason to believe were involved in the crime, and they give police unbridled discretion to determine which of these people to target for further investigation. In the Fourth Amendment framework, the unbridled discretion inherent in keyword search warrants, like geofence warrants, makes them an unconstitutional “general warrant.”

As Google emphasized in its brief, this case in Brazil has far-reaching implications. This method of investigating transforms a platform intended to provide access to information into a tool for the government to collect highly revealing private data from innocent people. And Google receives thousands of law enforcement orders to provide user data in Brazil each year, affecting tens of thousands of users. If Brazil’s Supreme Court signs off on dragnet keyword searches, the number of impacted users could skyrocket.

Google Fails to Challenge Keyword Search Warrants in the U.S.
Keyword search orders are becoming increasingly common in the U.S.—but Google seemingly hasn’t fought nearly as hard to protect the privacy of its U.S. users. We aren’t aware of any cases in which Google has pushed back against keyword search warrants in the U.S. In fact, we have no idea how many keyword warrants Google receives or how it responds to them at all, because Google has kept that information entirely secret. That secrecy surrounding keyword warrants contrasts with Google’s recent reporting on geofence warrants; Google has now shared the number of geofence warrants it receives and the three-step process it uses to respond to them.

It’s remarkable that Google has taken a strong stand in favor of user privacy in Brazil. But this problem isn’t limited to one country, and Google could do much more to protect its users. Google can and should take proactive steps to address the highly revealing capacity of its databases and adopt robust data minimization measures on how user data is processed and for long it is stored. And it should take a stand in the courts to protect users in the U.S. and other countries from dragnet keyword searches, just like it’s doing in Brazil. 

* The official copy of the brief that Google submitted to the Brazilian court is only available in Portuguese. We used an online tool to translate the brief into English so there may be some inaccuracies in translation.

Naomi Gilens is a staff attorney specializing in free speech and civil liberties litigation at EFF. Jennifer Lynch is Surveillance Litigation Director at EFF. Veridiana Alimonti is Associate Director for Latin American Policy at EFF. This article is published courtesy of the Electronic Frontier Foundation (EFF).