Yesterday, a second Florida Senate committee approved a measure that would ban warrantless location tracking and the use of stingray devices to sweep up electronic communications in most situations. The new law will not only protect privacy in Florida, but will also hinder one aspect of the federal surveillance state.
Sen. Jeff Brandes (R-St. Petersburg) introduced Senate Bill 1256 (SB1256) on Dec. 14. The legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
SB1256 would require police to get a search warrant based on probable cause before acquiring real-time or historical GPS location data, and before using any type of mobile tracking device in most situations. The bill would also add “electronic communications” to existing statutes requiring law enforcement to get a warrant before intercepting oral communications. This would effectively end warrantless stingray use in Florida, and would also require police to get a warrant before accessing stored location data from a service provider.
On Tuesday, the Senate Judiciary Committee passed SB1256 by a 10-0 vote with some technical amendments. The Criminal Justice Committee previously passed the measure by a 4-1 vote.
The bill does include some exceptions to the warrant requirement. Police could use stingray devices an emergency situation that involves the immediate danger of death or serious injury, the danger of escape of a prisoner, or when specifically defined exigent circumstances exist. In these situations, police would still be required to obtain a warrant within 48 hours.
The contents of any intercepted wire, oral, or electronic communication, or evidence obtained in violation of the law could not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.
The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of SB1256 would represent a major blow to the surveillance state and a win for privacy.
SB1256 now moves to the Senate Rules Committee where it must pass by a majority vote before moving to the Senate floor for a vote.