Colorado Supreme Court Upholds Controversial Google Keyword Warrant

The Colorado Supreme Court this week declined to suppress evidence gathered through a “reverse keyword” warrant, which enables law enforcement to collect information about users who ran internet searches of a specific term or phrase. Colorado is the first state high court to rule on the constitutionality of this investigative tool. Such warrants could have major implications for privacy rights.

The case, People v. Seymour, involves a tragic arson that left five family members dead, including an infant and a toddler. Unable to pinpoint any suspects using traditional investigative practices, Denver police submitted a reverse keyword warrant to Google, seeking a list of IP addresses associated with devices that had searched for the address of the house in the 15 days before it was set on fire. Using information provided by Google, investigators zeroed in on and eventually prosecuted three teens.

One of the teens, Gavin Seymour, challenged the legality of the warrant under the Fourth Amendment of the U.S. Constitution and Article II, Section 7, of the Colorado Constitution, both of which prohibit unreasonable searches and seizures.

Seymour argued that reverse keyword warrants are “profoundly different from traditional search warrants seeking data belonging to a suspect.” Rather than seeking information about a particular suspect, he said, “the process operates in reverse — search everyone first, and identify suspects later.” Such a warrant “requires Google to search the accounts belonging to billions of Google users and produce information about anyone who looked for certain terms or keywords during a given time.” Seymour claimed this amounts to a “digital dragnet of immense proportions.”

Seymour also argued that the warrant implicated speech protections contained in the First Amendment of the U.S. Constitution and Article II, Section 10, of the Colorado Constitution. “Search engines like Google are indispensable for browsing the internet,” Seymour argued. “Keyword warrants threaten to chill the public’s right to seek out information, and deter participation in a robust exchange of ideas by transforming every Google search into a risk.”

Seymour urged the court to look to its 2002 decision Tattered Cover v. City of Thornton for guidance. There, the court held that a warrant requiring a bookstore to turn over a customer’s purchasing history violated state constitutional protections. It announced that warrants to obtain expressive materials require “a more substantial justification” under Colorado’s constitution than is required by the federal constitution.

The government countered that “a search for an address is not a search that would implicate the type of ‘expressive activities’ or ‘free exchange of ideas’” that require the strict analysis set forth in Tattered Cover. Instead, the warrant satisfied constitutional requirements because it was sufficiently specific and there was probable cause to believe that evidence would be found in the data requested. Even if the warrant was somehow deficient, the government continued, suppression of the evidence wasn’t necessary because police reasonably relied on the warrant in good faith. Under this exception, a court should not suppress evidence obtained because of an officer’s honest mistake.

In its ruling, the Colorado Supreme Court took what it described as an incremental approach, making “no broad proclamation about the propriety of reverse-keyword warrants” but concluding that on the facts before it the evidence collected shouldn’t be suppressed.

The court agreed with Seymour that under the Colorado Constitution, he has a “protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name.” Pointing out that Colorado’s constitution provides greater privacy protections than the Fourth Amendment, the court looked to its long-standing rejection of the third-party doctrine, which holds that an individual does not have a reasonable expectation of privacy in information shared with a communications or technology company, such as Google.

Then — in a holding that one privacy scholar called “very novel” — the court held that Google’s terms of service create a property right in one’s search terms under both the state and federal constitutions. In other words, users own their search histories. Therefore, the court concluded, law enforcement’s copying of Seymour’s Google search history also constituted a seizure subject to constitutional protection.

As for the free speech implications of the warrant, the court declined to apply the Tattered Cover protections because Seymour didn’t clearly make that argument in the lower court. The court went on to apply the federal standard, which requires only that the search warrant describe the expressive material to be seized with “scrupulous exactitude.”

Having settled on the standard, the Seymour court set about applying it to the warrant. It concluded that the reverse keyword warrant adequately described the place to be searched. But, in so doing, the court focused more on the procedures used than on the actual place, noting that the warrant envisioned “no rummaging” and that “no human, let alone any law enforcement official, saw information falling outside the warrant’s narrow search parameters.” It also found that the warrant described the things to be seized — records containing one of nine specified keywords — with enough particularity.

Next, and leaving open an area for future litigation, the court went on to “assume[] without deciding that the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective.” Ultimately, the court excused any constitutional violation because the court found the police did not engage in willfully unconstitutional conduct — in other words, the good-faith exception applied. The court left for another day “whether a search of such data requires probable cause individualized to a single Google account holder.”

This case has been closely watched in Colorado and beyond. Privacy advocates say that keyword searches can affect innocent people. And their legality of has gained particular importance in the civil rights community post-Dobbs vs. Jackson Women’s Health Organization, amidst concerns that states will use them to crack down on women who use the internet to find information about how to terminate a pregnancy. The Electronic Privacy Information Center fleshed out this concern in an amicus brief filed in support of Seymour.

For now, the decision only allows keyword warrants in Colorado. However, this is just the first time a state high court has considered the constitutionality of such warrants — certainly not the last. As law enforcement increasingly turn to online activity to identify suspects, other state supreme courts will have an opportunity to consider the scope of the privacy and speech protections contained in their state constitutions.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and senior counsel in the Judiciary Program at the Brennan Center for Justice.