Two momentous Colorado Supreme Court decisions: one is the court asserting itself and the other is about police and reverse keyword searches.
A seemingly small CO Supreme Court decision that could mean a lot later.
The link below details a recent of Colorado State Supreme Court decision that struck me as having great potential to influence court proceedings going forward.
The story is about how the court tossed out an older legal precedent** which held that any governmental entity in the state that is subordinate to the state (e.g. think about how Weld County must follow all state rules and laws but the state doesn't need to follow any rules Weld County has, or think about how county governments can be MORE strict than a state law, but not less) is not able to seek judicial review on state decisions.
Let's take one of the cases mentioned as an example.
Under the old rules, if Weld County felt like state policies on oil and gas were harmful to them in terms of their property values and land use policies, they could go and say so to the State.
The State could then have said, in effect, "sorry you don't like it but those are the rules" and Weld County would have had no recourse.
To quote Judge Samour from the article, this would have made the state the "prosecutor, the judge, and the appellate body".
Now, we all know who is on the State Supreme Court, so you won't be surprised to hear that they found (of course) that the state policy did not in fact harm Weld County when Weld County took the state to court, but at least subordinate governments now have the chance to at least go to court--a chance they didn't have before.
As the article mentions, I have the feeling that this new ability will temper (let's hope) the state's more ambitious policy goals. Time will tell.
**The "Rule of Martin"
https://www.thelobby-co.com/content-library/colorados-local-governments-now-have-the-ability-to-sue-the-state-over-its-bad-decisions
A concerning ruling coming from the CO Supreme Court about reverse keyword searches.
The post prior to this one was about recent CO Supreme Court ruling that felt hopeful to me. This one is about another ruling that I find concerning.
As someone who is concerned about freedom and government overreach, in fact, I find it chilling. I think the court made a bad decision here.
The actual case that gave rise to the ruling is covered in some length in the article linked first below and it's followed by the ruling the court handed down. I'll leave it to you to read up on the details if you want, what I want to touch on is the part I find concerning: that the Supreme Court allowed the police to use a reverse keyword search to help them solve the crime.
Reverse keyword searches are something I was unaware was happening. In looking into it, the idea is something like this:
--The police are investigating a murder where the victim was in Smith Park at the corner of 6th Ave and 15th St (made up streets and park).
--They get a warrant to search Google's search history for a couple of days prior to when the body was found and ask Google to give them a list of local IP addresses (basically computer names) that were searching for the park and/or its address at that time
--They then start investigating off that list and hope they get a suspect or a lead. The hope being that perhaps the killer, or someone that knows something, did some researching about the park or was looking for a park, any park to dump the body in.
That's the process. Now, police have long used search warrants for things like the search history on your home computer or for files that might be on your desktop. I don't have an issue with this.
The new wrinkle here (and apparently in other cases because this "reverse search" is not new) is in how the searching is done. In previous cases, the police found a suspect first and then searched that individual's technology (or something that they knew the individual used).
In this new way of doing searches, the police use data from Google that comes from a variety of individuals. Only then is the list narrowed.
In other words, it's a fishing expedition, and depending on how the net is cast, you can haul in a bunch of stuff you don't want.
To see what I mean, take a look at screenshots 1 - 3 from the CO Supreme Court's decision linked third below. These are the sequential attempts by the Denver Police Department to do a reverse search. Look at all they're asking for an imagine how many innocent people who expected privacy from their government would find they didn't have it. Do you want your government to know things like the DPD detectives were looking for?
Weirdly enough, were it not for Google itself fighting Denver Police Department, one wonders what they would have gotten. Good on them for standing up to DPD.
Our State Supreme Court's response (in part--for a fuller picture I'd point you to the full ruling linked below) is, in brief and in conclusion, shown in screenshot 4 attached. I think information on the court's (faulty) reasoning can be further gleaned by readings paragraphs 56 through 61 (pages 31 through 34 of the majority opinion--it was too lengthy to quote).
The case they mention in this lengthy discourse contrasted a similar case where police went into an accountant's office and dug through paper records to find people with tax records where there was evidence of identity theft.**
The CO Supreme Court held in that case that the search was illegal because it (quoting) "lacked individualized probable cause". In contrast, screenshot 5 shows how the court justifies why they find an electronic dragnet to be different enough to not fall under the heading of lacking individualized probable cause.
Lastly, the court cops out by citing an "out" to the rule about illegal searches and seizures of evidence, the so-called "good faith exemption" which is essentially that the police can use things they find in a search, even if that search was later found to be illegal provided that it was reasonable and allowed at the time the search was done. In other words, they say that any concerns one would have over their reasoning, any other precedent that might make for a different ruling. After all, the cops were acting in good faith.
I find myself quite frustrated and concerned at this ruling. I say that for a few reasons.
The court itself acknowledges that we have a right to expect that our search histories, location histories and etc. are protected from intrusion by the government. Then they turn right around and say why DPD didn't violate anyone's rights in this case.
There are parts of the ruling that I think are reasonable: it should be noted that DPD did eventually get a warrant (after figuring out what Google would tolerate).
At the same time, however, this ruling ignores or skips lightly over other equally reasonable things. Go revisit screenshots 1 - 3 again. But for the grace of Google, look at what the police might've had. This clearly lays out the police's intent.
Is the first version of what DPD wanted representative of the government acting in good faith?
Further, I fail to see how the precedent highlighted in screenshot 5 isn't applicable. Only to the Colorado Supreme Court is it substantially different when the police do a dragnet search through paper files as opposed to doing so with electronic data. Yes, the results were initially anonymized (as opposed to files with names), but they didn't end that way. In my view, only if the results stay anonymous the whole time is it valid to not draw a parallel to rummaging willy nilly through paper files.
This search is an overreach. It was unreasonable.
Our state's highest court should have met unreasonable strongly so that the lesson sticks. Bending to allow this to take place, despite the court's "hard words" warning in screenshot 6 attached, signals to the government that you can indeed get away with scooping up a whole lot of information about citizens as long as you start anonymously and narrow from there. It says to the government that as long as you winnow down to something Google can stomach and get some judge somewhere who is wiling to sign off you can violate the privacy of scores of citizens with impunity.
This case was wrongly decided.
**And, frankly, evidence of not being here legally because, though they do pay taxes, illegal immigrants also steal identities or social security numbers in doing so.
https://www.denver7.com/news/local-news/colorado-supreme-court-ruled-in-favor-of-reverse-keyword-search-denver-police-used-to-track-arson-suspects
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA12.pdf
Related:
Out of curiosity, I reached out to Denver Police Department, and my two local departments (Logan County Sheriff and Sterling Police Department) to see if they did any reverse keyword search warrants and what sorts of policies they had for same.
Below is what I found.
--The detective I spoke to at Logan County Sheriff's office didn't know what every single detective/partrolperson was doing, but he was unaware of any reverse keyword warrants either issued or sought.
--I called Sterling Police Department twice. As of this writing, I have yet to hear back.
--I called and emailed the Denver Police Department. I got the following response to my questions:
"The department does not have a tracking mechanism for the type of search warrants executed. As such, we are not able to provide a number of reverse keyword search warrants that have been completed. There is no written policy specific to warrants related to reverse keyword searches. There is policy related to search warrant parameters that can be found in 107.00 (Search and Seizure)."
The link they reference is here. It is not organized by page number but you can scroll down to section 107.00. Reading up on it I have to admit that I wonder how well the first iterations of the warrants the officers sought match policy.
https://www.denvergov.org/files/assets/public/v/48/police-department/documents/operations-manual/om_book.pdf