This week, the Colorado Supreme Court upheld a criminal conviction which relied in part on evidence obtained pursuant to a warrant for Google search data. People v. Seymour, 2023 CO 53 (Oct. 16, 2023) (available at http://www.courts.state.co.us).

In investigating the cause of a 2020 apparent arson fire at a Denver residence which resulted in the deaths of five people, police served a “reverse-keyword warrant” on Google, requesting information about individuals who had searched for the address of the house. While Google initially objected, it eventually complied and provided data that allowed the investigators to focus on five Google accounts. This ultimately  led to the arrest of three teenagers.

One of the defendants had googled the address for the home that caught fire 14 times in the days before the fire occurred. His attorney challenged the  keyword warrant as an illegal search and sought suppression of the Google search evidence. This was the first such challenge to the constitutionality of keyword search warrants.

The majority opinion upheld the warrant as having been executed in good faith, cautioning however that its holding was a limited one: “Our finding of good faith today neither condones nor condemns all such warrants in the future [. . .] If dystopian problems emerge, as some fear, the courts stand ready to hear argument regarding how we should rein in law enforcement’s use of rapidly advancing technology.” In reaching its decision, the majority grappled with the sensitive nature of an individual’s Google search history, but concluded that—while there are certainly plenty of “innocuous reasons” that an individual would search for an address—the warrant at issue was sufficiently “particularized” and law enforcement took reasonable steps in utilizing this search technique in this case.

The Court’s ruling was not unanimous. Two Justices dissented on the ground that the ruling “gives constitutional cover to law enforcement seeking unprecedented access to the private lives of individuals not just in Colorado, but across the globe.” The dissenting opinion highlighted a fear that this type of warrant will become “the investigative tool of first resort” and that it is “a tantalizingly easy shortcut to generating a list of potential suspects.” Another Justice concurred in the majority’s judgment affirming the conviction but did not join in the majority’s opinion.

While there are very few examples of keyword search warrants, it should cause readers some pause. Society needs to set clear parameters on the use of advanced search techniques (such as keyword searches and even geofence warrants, i.e., where investigators ask Google to provide data about the location of a user’s device near the scene of a crime) in order to balance individual privacy rights against criminal investigations.