Ask a GW Expert: Can My Google Search Be Used Against Me

Right now, I think it's fair to say you do not have a clear, reasonable expectation of privacy in your Google searches. With a reverse search warrant, detectives interested in finding out whether someone has done something wrong can ask Google or any equivalent search provider to identify anyone who has googled a particular phrase, a particular address, a particular idea-anything from the location of a crime that the detectives were investigating to "early signs of pregnancy," which in a state like Texas might bring unwanted attention for people who are trying to see if abortion services could be available in other states.

Most of us ask Google questions we might not ask our spouse or family or friends. We reveal embarrassing medical conditions and ask ignorant questions we have about the world. And what we don't recognize is that our data is available not only to Google for monetization, but also to law enforcement. There's an open question about whether police even need a warrant to get it.

Two stories are merging and creating a new danger. The first is a growing web of self-surveillance. You probably have a smartphone that's reviewing where you are and what you've been doing. You may have a smart watch. You might have a car that is actually tracking you with GPS. Many people have doorbell cameras on their front doors. We're building these networks of surveillance devices.

At the same time, there's a story of democratic self-surveillance. We're putting cameras on our streets and putting facial recognition in our airports. Automated license plate readers can capture your cars.

We have created these data trails without thinking about how they can be weaponized. Those can be used now as evidence as part of the criminalization of political dissent. As long as there is a criminal predicate, police can get a warrant. Having a warrant isn't bad, but it's probably not enough to protect you, because it's very easy to change what is "criminal."

I think we can all agree that when there's digital evidence of a horrible crime, we want to have a way for law enforcement to get access. But that same rule also allows the government to access search questions like, Where's the nearest "No Kings" protest? What are my immigration rights as an undocumented individual? And all of those clues open us up to government surveillance in a world where we're seeing a growing politicization of our criminal justice system. The same thing that allows detectives to go find the arsonist allows attorney generals in various states to go after people seeking gender-affirming care for their kids. We don't have laws that distinguish those two.

Legislatively, you could fix this with a heightened warrant requirement that would allow police to get access when they really need it, but also protect certain activities, your intimate autonomy issues, religious issues or free speech issues.

What would you do if your most embarrassing Google search, your most embarrassing email was directly accessible by a tyrant or the tyrant's FBI director? It's not going to be one simple answer.

Ferguson's latest book, "Your Data Will Be Used Against You" was just published by New York University Press. He is giving a talk in the Tasher Great Room of the Jacob Burns Law Library at noon on Thursday, April 2, and will be signing books afterward.