After several years of law enforcement agencies across the United States gathering evidence using a secret surveillance tool – and doing so without a warrant – a federal judge has struck down evidence collected by the U.S Drug Enforcement Administration. U.S. District Judge William Pauley in Manhattan ruled that the defendant’s rights were violated when the DEA used a cell site simulator, also known as a Stingray, without a warrant in order to find the suspects home.
The Electronic Frontier Foundation describes Stingrays as “a brand name of an IMSI (International Mobile Subscriber Identity) Catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cell phone tower – to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not – and tricks your phone into connecting to it.” As a result, whoever is in possession of the Stingray can figure out who, when, and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations.
Raymond Lambis was located in his Washington Heights apartment after authorities used the device to locate a cell phone used for drug trafficking. Judge Pauley said the use of the Stingray was an unreasonable search and violated the defendants Fourth Amendment rights. “Absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device,” Pauley wrote. Judge Pauley becomes the first federal judge to suppress evidence based on the use of a cell site simulator.
“This opinion strongly reinforces the strength of our constitutional privacy rights in the digital age,” ACLU attorney Nathan Freed Wessler said in a statement to Reuters.
Although Judge Pauley is the first federal appeals judge to rule that evidence collected via Stingrays was illegally gathered, the state appellate court in Maryland had also previously ruled similarly. In the Maryland case, the defendants attorneys argued that the use of cell site simulators amounted to dragnet surveillance because police were able to gather sensitive data about their lives, thus violating the Fourth Amendment right “of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.”
However, in late May, the 4th Circuit overturns the ruling. In a vote of 12 to 3 the U.S. Court of Appeals for the 4th Circuit ruled that police can legally gather “cell site” location information (CSLI) without judicial approval via a search warrant. The 4th Circuit made the ruling based on rules implemented before the growth of cellphones and computers which allow law enforcement to collect business or “third party” records without a court order. The rules were originally intended to govern banking transactions and phone calls made by a traditional landline.
The three dissenting judges called the majority decision a dangerous expansion of the third-party doctrine. Judge James A. Wynn stated that “the Fourth Amendment, necessarily, is in retreat.” The Washington Post reports that Wynn stated that CSLI is different from other types of data because phone users do not “voluntarily convey” the information and are likely unaware they are providing local cell towers with sensitive data that can be scooped up by law enforcement.
“I suppose we can also expect no privacy in data transmitted by networked devices such as the ‘Fitbit’ bracelet, which ‘can track the steps you take in a day, calories burned, and minutes asleep,’” Wynn said in a footnote discussing the popular device that can track an individual’s temperature, and heart and breathing rates.
Both the Maryland and Manhattan court’s decisions are likely to make their way to the Supreme Court as local, state, and federal officials grapple with the rise of invasive technology that is slowly eroding the concept of privacy.
Both the Harris Corp. who manufacture the Stingrays and the Federal Bureau of Investigations require police to sign non-disclosure agreements (NDA) related to the use of the devices. Through these NDAs local police departments have become subordinate to Harris, and even in court cases in front of a judge, are not allowed to speak on the details of their arrangements. This has created a dangerous precedent which allows law enforcement on the local, state, and federal level to operate the devices with impunity. Americans remain largely ignorant to the fact that numerous agencies are gathering their private information without a warrant.
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