Query this database: The keyword-based Search Warranties

Author: Carolina Christofoletti

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Early last week, my LinkedIn’s feed came to be flooded with a very interesting news article, coming from lots of different sources, instructing how to protect our Google Search History with password. This headline has but a historical track:

The October 2020’s CNET headline, claiming that Google was providing users data to Law Enforcement Agencies based on “keyword” search warrants. The writer meant, by that, that basing on a keyword provided by the police, Google was consulting his own database and seeing who, at the indicated time, had googled it. (read it here)

Overall, people tend to have this idea that it Law Enforcement Authorities are seeing everything, every time. Fortunately, they are not, but business are, with huge databases they collect about you all the time.

Ideally, Governments are not allowed to monitor their citizens without a proper reason and a warrant, and Intelligence Agencies have a hard time seeing that, sometimes, they can use anything but not the information that they collected against a proper search warrant to handle that case – what results, sometimes, in the need of collecting it again.

First thing, conversion from Intelligence to Law Enforcement information is not immediate. Second, intelligence exists not only with government but, in a much broader sense, with business.

Business databases like Google’s are much bigger than some national databases. National databases are, sometimes, an abstract construction meaning all local databases that they have access to. But databases queries keep also track of things, so that the intelligence track can also be reconstructed.

The most interesting thing about databases is that at some point, they get stuck at the moment. And this data that has stopped in the past, very different from a LEA monitoring where you are committing the crime in front a police officer, comes to be, weirdly as it seems, a less problematic legal case compared to the second one.

 Briefly, if business agencies hold a dataset that is relevant to the police is a case under legal, formal investigation, those datasets must be shared.  

When it comes to Law Enforcement Cooperation, and especially in those cases where Data Request do not come with a court order, things have a legal nature of “courtesy request” (Law Enforcement Cooperation Guides). That means that, if there is any reason for Google (or anybody) to suspect that any Data Request is illegal, it can decline cooperation and ask for a court order (where jurisdictions problems begin). The headline came, but, in a case that Google decided to handle it.

If we want analysis to be neutral, we need to avoid generalizations and identify the points where the argument breaks. In this case, it breaks in the very nature of things. When we talk about Internet Search Warrants, we necessarily talk about “past-data”, we talk about records.

It is slightly different from what one was used to in Physical World Search Warranties, where the imperative was: Found the device. In the Digital world of things, the imperative has become: This is a part of the track, find where it comes from and where it goes. All this data remains, but, in the past and, at the time LEA comes those data are already “written” somewhere, in a browser, in a disk, or in a Google Server.

The tricky point here is if LEA could access data collected for marketing and business purpose. And the answer is, as in everything, it depends. In this case, it depends on if you, user, consented to that. This is a matter of “Rules of the Game”.

Usually, Google’s Terms of Service and others are very clear on the paragraph they say they will cooperate, under certain and legal circumstances, with law enforcement personnel if requests. If you commit a crime using Google’s Service, they will report you if this reporting is mandatory (as in Child Sexual Abuse Material and Exploitation cases). And if you let your criminal track in Google, Google will also help. And it shall not be any different, as a matter of principle, and if Criminal Procedure Rules are read together with other legal rules.

Think rationally about it: Does it make sense to say that LEA has been guaranteed a search warrant to a Child Sexual Abuse Material (CSAM) club on the Dark Web, but that it cannot ask Google to compile all search data relating to “googles” of the CSAM club name or link, or even of a known club members (fan community, one calls it), during a certain time? Why should we let LEA in the Dark in cases so important like that?

From my own point of view, keywords (or link) searches – expanding that- are to be allowed under the same conditions of any search warrant, that is, provided that Law Enforcement Authorities have sufficient reason to believe that this can lead them to somewhere meaningful (and not to a simple surveillance based on profiles, what criminal and procedural law forbids), based on sufficient tips that are already existent at the time that the search warrant request originated. That means, for LEA, a need to specific things as much as possible.

In fact, allowing a search warrant to be conducted based on generic keywords (e.g., CSAM related, or CSAM) seem to be something far too vague since, from an investigative point of view, it remains unclear how the case LEA has in its hands and this specific word come together. Exception made to cases where keywords reveal a specific gang vocabulary.

But the problem here is not with the generic keywords itself, but with the time that the solution comes. Generic keywords should be blocked by design as never to be able to move an investigation, as the crime and the search query would have been impossible. For preventive blocking to work properly, a strength of industry cooperation to map this platform specific vocabulary, rather than just delete the file, is needed.

In conclusion, if the keyword search is so specified as to be able to illuminate, meaningfully, something that hides in the dark, cooperation should be guaranteed. Always Remember that there is no right of privacy for criminal acts, as there are not for criminal tracks.

Think about it.