Searching Can Get You Searched: the Kurtz Decision

Types : Bylined Articles

Do Pennsylvanians have a right to privacy in their Google searches? A recent Pennsylvania Supreme Court decision says “no”—at least for “unprotected” internet queries.

In Commonwealth v. Kurtz, the court upheld the use of a “reverse keyword search warrant” that allowed law enforcement to assess whether a victim had been “Googled” around the time she was attacked and then used that data to find, arrest, and convict the Googler. Key to the decision was the court’s finding that the Google search in
question was “unprotected.” Thus, the Kurtz case—which includes a heated dissent from Justice Donohue—highlights the constant stream of digital privacy challenges in the age of constant surveillance and foreshadows the coming battles over the steps internet users can take to shield their online activities from government intrusion.

The Search for the Internet Searcher
K.M. awoke in the middle of the night to discover an intruder, who tied her hands, gagged and blindfolded her, dragged her out of her home, drove her to a nearby camper, raped her, and fled. K.M. could not identify her assailant and the collected DNA sample yielded no matches.

Fearing their investigation was reaching a dead-end, Pennsylvania State Police (“PSP”) investigators “decided to look in one last place:
the internet.” Despite having “no evidence that the perpetrator used a computer or Google’s internet search engine to assist him in committing his crimes,” investigators nonetheless “believed that he had researched K.M.’s name or address beforehand” for four reasons: (1) the remote location of K.M.’s home led investigators to suspect the attack was not random; (2) investigators thought the assailant was familiar with K.M. and her home based on the circumstances of the attack; (3) investigators hypothesized that “many sexual offenders are predominantly fantasy driven” such that
“there was a basis to conclude that K.M.’s assailant may have been stalking her over a period of time[;]” and (4) the police posited that because the assault occurred when K.M.’s husband was at work, the perpetrator may have researched K.M.’s personal life and schedule.

Investigators consequently obtained a “‘reverse keyword search warrant’ for the records that Google generated during the week prior to the assault.” Unlike a standard warrant, this reverse keyword warrant “was not directed at a specific person’s activity, but instead targeted all searches performed on Google’s search engine for K.M.’s name or address.”