Texas Bar Journal • July/August 2026

From the Revolution to Reverse Warrants

What helped inspire the Fourth Amendment is shaping how courts assess digital surveillance today.

Written by Nelson Ebaugh

As we celebrate the 250th anniversary of the Declaration of Independence, it is worth revisiting one of the founding generation’s deepest grievances against British rule: general warrants and writs of assistance.

That history is more than a matter of patriotic interest. Even in an age of the internet, smartphones, and digital surveillance, those pre-Revolutionary abuses remain a useful guide in deciding whether a warrant today violates the Fourth Amendment.

The path from the colonial era to modern surveillance law is shorter than it may seem. In fact, the abuses that inspired the Fourth Amendment now help shape the debate over reverse warrants.

GENERAL WARRANTS AND WRITS OF ASSISTANCE
General warrants and writs of assistance have a notorious history, but they also helped give rise to the Fourth Amendment and continue to inform its interpretation today.

As the U.S. Supreme Court has explained, “[t]he general warrant specified only an offense—typically seditious libel—and left to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched. Similarly, the writs of assistance used in the Colonies noted only the object of the search—any uncustomed goods—and thus left customs officials completely free to search any place where they believed such goods might be.”1

Colonists reviled general warrants and writs of assistance because they “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”2

In 1761, Boston lawyer James Otis famously denounced writs of assistance as “‘the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,’ because they placed ‘the liberty of every man in the hands of every petty officer.’”3

John Adams attended Otis’ speech, and it left a lasting impression.4 Adams later wrote that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In 15 years, namely in 1776, he grew to manhood, and declared himself free.”5

In 1791, the founding generation ratified the Fourth Amendment, which provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”6

The U.S. Supreme Court has said that the Fourth Amendment “was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies ”7

That history still matters because the danger did not disappear. It changed form.

Carpenter v. United States8 shows why. There, the Supreme Court held that obtaining seven days of historical cell-site location information from a wireless carrier is generally a Fourth Amendment search requiring a warrant.9 In doing so, the court recognized that digital-age surveillance can re-create the kind of sweeping governmental power the Fourth Amendment was adopted to restrain.10

That same concern now appears in litigation over reverse warrants.

REVERSE WARRANTS
Reverse warrants, such as geofence warrants, tower dump warrants, and reverse-keyword warrants, flip the usual sequence of investigation. Instead of identifying a suspect first and then seeking evidence tied to that person, geofence warrants and tower-dump warrants begin with a particular time and place and work backward in hopes of identifying a suspect. Reverse-keyword warrants operate similarly: They begin with a specified period and one or more search terms and then work backward in hopes of identifying a suspect.

That approach is possible only because technology companies hold enormous amounts of user data. Wireless carriers keep records showing which phones connected to which cell towers. Search engines store search histories. Smartphone apps and map services may preserve location data. Investigators can use those records to look backward in time and identify people who otherwise might never be found.

Until recently, appellate courts had not squarely resolved whether geofence warrants, tower-dump warrants, and reverse-keyword warrants implicated protected privacy interests or otherwise triggered Fourth Amendment scrutiny, much less whether they were unconstitutional. In the past few years, however, appellate courts have begun to confront those issues. In doing so, some courts have expressly invoked general warrants, while others have relied on the same underlying concern: whether these warrants give officials too much discretion to search broadly first and identify suspects later.

The U.S. Court of Appeals for the 5th Circuit’s decision in United States v. Smith11 is one the clearest examples. The court considered whether a geofence warrant, which required Google to identify devices found within an area of approximately 98,192 square meters during a one-hour period, was constitutional under the Fourth Amendment.12 The court explicitly compared the geofence warrant to the general warrants of the pre-Revolutionary era and stressed that Google had to search roughly 592 million accounts to identify responsive devices.13 That massive search, the court reasoned, resembled the kind of broad rummaging the Fourth Amendment was adopted to forbid.14 The 5th Circuit therefore held that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.15 But it declined to suppress the evidence, finding that the officers acted in good faith.16

The Colorado Supreme Court took a more nuanced approach in People v. Seymour.17 That case involved a reverse-keyword warrant requiring Google to identify users who searched for variations of a particular address during the 15 days before the house at that address was set on fire.18 The majority held that the defendant had a protected privacy interest in his Google search history, and that copying that history was a seizure under both the Colorado Constitution and the Fourth Amendment.19 It also concluded that the warrant was sufficiently particularized.20 But, assuming without deciding that the warrant lacked individualized probable cause, the court declined to suppress under the good-faith exception.21 Still, the court acknowledged the traditional rule that general warrants are forbidden because they permit “a general, exploratory rummaging in a person’s belongings,”22 though it did not decide that the warrant in that case went too far. The dissent went further, warning that reverse-keyword warrants are “tantamount to a high-tech version of the reviled ‘general warrants’ that first gave rise to the protections in the Fourth Amendment,”23 because the warrant effectively swept through Google’s database of about a billion user accounts.

The New Jersey Appellate Division addressed similar concerns in State v. Bryant.24 That case involved tower-dump warrants requiring wireless carriers to disclose information about all devices that connected to cell towers serving the victims’ apartment, and “any other cell site location facing and in close proximity to” it, during a 1-hour and 45-minute period, along with broad subscriber information associated with those devices.25 In addressing the issue, the court considered a line of cases treating tower-dump warrants as “general warrants, and therefore unconstitutional under the Fourth Amendment.”26 It ultimately held that the specific warrants before it were unconstitutional under both the federal and state constitutions because they were not sufficiently particularized and were overbroad, sweeping in information concerning more than 10,000 innocent cellphone users.27 Even so, the court declined to suppress the evidence, concluding it was admissible under the inevitable-discovery and independent-source doctrines.28

These cases are only a few examples, but they illustrate a common theme. When courts confront reverse warrants, they often return, explicitly or implicitly, to the history of general warrants and writs of assistance.

A reverse warrant can search a broad pool of private data, mostly belonging to people not yet suspected of wrongdoing, and then leave officials with discretion to decide which people deserve closer scrutiny.

That is why the comparison to general warrants continues to resonate. In each setting, the fear is that the government will engage in an unparticularized fishing expedition, rummaging widely in hopes of finding someone to investigate rather than identifying a suspect first and then seeking evidence tied to that person.

Because this is only the beginning of the wave of challenges to reverse warrants, it is not yet clear where the law will finally settle. To be sure, many courts do not believe that reverse warrants raise the same concerns as the reviled general warrants.

But one thing is clear: The same historical abuses that helped inspire the Fourth Amendment still shape how courts assess new forms of digital surveillance today.

NELSON EBAUGH is a Houston-based trial and appellate attorney who focuses on securities litigation, white-collar defense, and criminal appeals. He is certified in criminal appellate law by the Texas Board of Legal Specialization and is active in bar leadership and legal education through the Federal Bar Association’s Southern District of Texas Chapter and the State Bar of Texas Criminal Justice Section.