On Tuesday a federal appeals court with jurisdiction in Virginia and Maryland ruled that police do not need a search warrant to obtain cell tower location information using ‘Stingray’ surveillance devices.
In a vote of 12 to 3 the U.S. Court of Appeals for the 4th Circuit has 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.
Writing for the majority opinion, Judge Diana Gribbon Motz said the Supreme Court could eliminate the third-party doctrine at a future date and Congress could require a warrant for CSLI, “but without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.” Motz also stated that overturning the ruling would conflict with recent rulings by federal appellate courts in Florida and Cincinnati, New Orleans and Philadelphia.
The judgement relates to two Maryland men, Aaron Graham and Eric Jordan, who were convicted of armed robberies in Baltimore. Both men were under investigation for seven months. During that time period police investigators gathered evidence using cell site simulators, also known by the name Stingrays. Stingrays are the brand name of a popular cell-site simulator manufactured by the Harris Corporation.
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.
Graham and Jordan’s 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.”
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.
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The decision by the 4th Circuit overturns a ruling from August 2015 which found that accessing cell site information without a warrant was unconstitutional because law enforcement are able to gather sensitive data, including a person’s daily routine in both public and private spaces.
“Because months’ worth of cell phone location data can reveal extraordinarily private details of a person’s life, the right way to protect people’s privacy interest in that information is to require a warrant,” said Nathan Freed Wessler, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “The Fourth Circuit’s decision is not the last word on this issue. Other appellate courts will surely address these questions soon, and the Supreme Court may well need to weigh in.”
The ruling is likely to make its 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. On May 18, Illinois passed Senate Bill 2343 which forces police to obtain “a court order based on probable cause that a person whose location information is sought has committed, is committing, or is about to commit a crime, is required for any permitted use” before using a Stingray or similar surveillance device.
Both the Harris Corp. 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.
Image Credit: TheFreeThoughtProject.com
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