Google is fighting back against a Brazilian court order to turn over data on all users who searched for specific terms, including the name of a well-known elected official and a busy downtown thoroughfare. (Brief in Portuguese / English*) While we applaud Google for challenging this digital dragnet search in Brazil, it must also stand up for the rights of its users against similar searches in the U.S. and elsewhere.
Background: Keyword Search Warrants
Keyword search warrants like the one in Brazil are far broader than traditional search warrants described in the Fourth Amendment to the U.S. Constitution. The Fourth Amendment requires police to establish probable cause to search a particular place or seize a particular person or thing before the court authorizes the warrant. But keyword search warrants don’t start with a suspect person or device. Instead, they require Google to comb through the search histories of all of its users, including users who are not logged into a Google account when they search.
Keyword warrants allow the police to learn anyone and everyone who may have searched for particular terms on the off-chance one of those people could have been involved with the crime. Like better-known geofence warrants, keyword warrants allow police to conduct a fishing expedition and sweep up data on innocent people, turning them into criminal suspects. Police are using both types of expansive, suspicionless searches with increasing frequency.
Google Takes a Stand Against Keyword Search Warrants—in Brazil
The Brazilian case arises out of the assassination of Rio de Janeiro City Councilor Marielle Franco. Franco was murdered, along with her driver, Anderson Gomes, near Rio de Janeiro in 2018. It was a terrible crime that stirred up public outcry.
As part of the investigation into the assassination, police ordered Google to trawl through its users’ search histories, scanning for searches of certain terms—including the name of a heavily trafficked street in Rio de Janeiro (“Rua dos Inválidos”), Franco’s name, and the name of a nonprofit cultural space intended to support Black women (Casa das Pretas), where Franco had participated in an event earlier on the day she was killed. The order required Google to turn over identifying data about all users who searched for these and other related terms over the course of four days.
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.