by Derek Gilna
Privacy experts have warned against the use of Stingray technology since its existence was first revealed. This device permits the user to locate individuals by tracking the signals emitted by their cell phones.
Dozens of large law enforcement agencies in cities like New York, Los Angeles, Chicago, and Las Vegas are currently using StingRay devices (also referred to as cell site simulators). However, the exact dates of initial use, as well as how often they are deployed are closely guarded secrets. The devices mimic cell phone towers and sweep up cell phone data from an entire area, and some can also intercept texts and calls and secretly take information from phones.
Privacy advocates are even more concerned about what they think is increasing government encroachment on an ever-shrinking universe of privacy, in which law enforcement is increasingly seen as complicit in legalized spying on its own citizens. The criminal justice system is currently perceived by many to be unconcerned about protecting the privacy rights of innocent citizens whose information gets swept up in indiscriminate data grabs by overreaching law enforcement agencies. The maddening lack of transparency by law enforcement agencies only reinforces the perception, which in turn further erodes public trust in government.
In fact, law enforcement agencies are so worried about details of Stingray technology being disclosed to the public that they often dismiss cases and offer plea deals to conceal its capabilities. According to attorney Jerome Greco of the Legal Aid Society, “We can’t even tell how frequently they’re being used. It makes it very difficult.”
The FBI tightly controls access to this technology and requires the 72 state and local law enforcement agencies in 24 states, as well as 13 federal agencies, to sign non-disclosure agreements. The New York Civil Liberties Union sued to win public disclosure of the fact that the NYPD had used the Stingray devices more than 1,000 times since 2008.
Jennifer Lynch, who is an attorney with the Electronic Frontier Foundation, said,
“We have a Fourth Amendment to the Constitution,” protecting against unreasonable search and seizure. “Our Founding Fathers decided when they wrote the Bill of Rights there had to be limits placed on government.” Gradually, legislatures and courts have finally started to pay attention to the grave threat to privacy and constitutional rights posed by unchecked use of Stingray technology by law enforcement agencies.
Although federal law enforcement agencies now claim that they would seek warrants for use of the devices, it is not yet obligated to do so by statute. Some courts have begun to rein in the practice, and an appeals court in Washington, D.C. reversed a sexual assault conviction, ruling that the defendant’s Fourth Amendment rights were violated when the device was used without a warrant. This follows a decision in a New York murder case, where a judge ruled that a warrant was needed to a Stingray device, rather than the lower bar of “reasonable suspicion” that had previously been the standard.
State Suprme Court Judge Martin Murphy said, “By its very nature, then, the use of a cell site simulator intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause.” According to Greco, “We’re hoping we can use this decision among other decisions being made across the country to show that this logic is right. Part of an issue we’re facing with technology, the judges don’t understand it. It makes it easier if another judge has sat down and really thought about it.”
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