Delaware Passes Legislation to Restrict the Use of Reverse Keyword Warrants

Dover, DE — Late last night on the final day of Delaware’s 153rd General Assembly, the Delaware State Senate passed legislation that largely prohibits law enforcement and courts from requesting, issuing, or enforcing reverse keyword court orders and requests in the First State. Known as House Bill 145 (HB 145), this is the first near ban on reverse keyword warrants in the United States.

Reverse keyword warrants allow governmental entities to conduct dragnet style searches of an unlimited number of people who entered a specific word or phrase into a search engine or other application during a specified period of time. Unlike other warrants, they do not require law enforcement to have probable cause to believe that a specific individual has already or will imminently commit a crime. Reverse keyword warrants subject individuals to criminal suspicion and further investigation for merely searching for a particular term that happens to be of interest to law enforcement at a given time.

Policies that secure individuals’ privacy and ability to fully engage in modern society without fear of being dragged into unrelated criminal investigations are not based on liberal or conservative values. They are grounded in American values.

“This isn't a Democrat or Republican issue,” said Representative Madinah Wilson-Anton, the primary sponsor of HB 145. "Reverse warrants go against the Fourth Amendment because they put a lot of innocent people under unnecessary and invasive surveillance without good reason. No matter your political views, too much government surveillance affects everyone — especially today, when almost everyone has to use digital devices.”

“No Delawarean should be subjected to the invasive surveillance of reverse keyword warrants. These methods show no regard for individuals’ consent and create a slippery slope that infringes on people’s privacy,” said Senator Marie Pinkney, a sponsor of HB 145. “This bill is necessary to guarantee that Delawareans’ smartphones and any other day-to-day online use will not be used against them.”

Delaware’s status as the incorporation capital of the United States and the corporate home to the majority of the country’s largest tech and data companies means that its laws regarding reverse warrants affect people living in states across the country. Corporations incorporated in Delaware that possess data relevant to reverse keyword search warrants, and could be targeted in Delaware by other states’ reverse warrants as a result, include Alphabet – the parent company of Google and YouTube – Meta, Amazon, ByteDance, Reddit, and OpenAI – the parent company of ChatGPT.

With the passage of HS 1 for HB 145, the strict limitations on reverse keyword warrants in Delaware equally apply to other states seeking keyword search data from companies incorporated in Delaware through Delaware’s courts and law enforcement. In so doing, the legislation also ensures that Delaware does not inadvertently aid the efforts of other states that criminalize conduct Delawareans value and support, like political speech and protest, abortion care, gender affirming care, and protecting our immigrant neighbors.

“In passing this legislation today, Delaware has staked its claim as a national leader when it comes to protecting individuals' digital data from overly broad and intrusive reverse keyword warrant searches by law enforcement,” said John Reynolds, Deputy Policy & Advocacy Director of the ACLU of Delaware. “Now, we call on Governor Meyer to quickly sign this bill, cement these protections, and demonstrate that Delaware understands its unique and important role in advancing this important issue both for Delawareans and people across the country.”

Monday’s United States v. Chatrie Supreme Court decision, which, in a ruling focused on reverse location warrants, made clear that location data is protected by the Fourth Amendment, reaffirmed the importance of privacy policies like HS 1 for HB 145 in the digital age.

“We live in an age where people are all but forced to share their private personal data, like their location data and internet search words, in order to live a modern life,” said Chad Marlow, senior policy counsel at ACLU. “In passing the strongest restrictions on the use of reverse keyword warrants our nation has ever seen, Delaware stood up not only for the privacy of its own residents and visitors, but for that of everyone in America. Our entire country is better off for what Delaware did today, and other states should be clamoring to follow its lead.”

In short, with respect to the use of reverse keyword warrants, HS 1 for HB 145 removes the “mass” from “mass surveillance.”

As we near the 250th anniversary of the founding of the United States, passing HS 1 for HB 145 continues Delaware’s proud tradition as the trailblazing “First State” and demonstrates its commitment to two of our country’s core values: freedom of expression and freedom from unreasonable searches.