A Lawsuit Could Rein In the Government’s Use of Secret Surveillance Tools
A controversial tool used by law enforcement to track the location of suspects via their cell phones could take a major hit next week in Maryland. On Tuesday, the court of appeals will hear arguments in a case that challenges the state’s use of cell-site simulators, known as Stingrays—which mimic cell towers to track a phone’s location—to follow Baltimore resident Kerron Andrews, a suspect in a murder case.
The surveillance equipment triggers a response from cell phones in the area that relays data about their location and use to the device. The key problem for privacy advocates is that such devices are a blunt instrument: Rather than getting responses from a specific suspect’s phone, they elicit data transfers from all cell phone users in range.
“This case will likely result in the first appellate court decision anywhere in the country squarely addressing how the Fourth Amendment squarely applies to Stingrays,” said Nathan Freed Wessler, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Because of the tremendous and corrosive secrecy that law enforcement applies to Stingray use, very few courts have had the chance to weigh in.”
Advocates are especially concerned with law enforcement’s ability in many states to use Stingray technology without obtaining a warrant. While Maryland has since passed legislation that requires a warrant to track the location of a cell phone, the statute didn’t exist at the time Andrews was tracked down. Many states have no such legislation, allowing police to use Stingrays after acquiring a court order that demands a lower standard than a full warrant, for which they would have to demonstrate probable cause.
In late January, the state’s attorney general, Robert Taylor, turned heads when he implied in a brief that any person who leaves his or her cell phone on is consenting to government tracking.
“While cell phones are ubiquitous, they all come with ‘off’ switches…. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties,” wrote Taylor in the state’s brief.
In a related development, in Wisconsin this week, Wessler and his colleagues, along with the Electronic Frontier Foundation, filed a brief challenging the Milwaukee Police Department’s warrantless use of a Stingray. The legal questions at stake are almost identical to those raised by Andrews’ case, and Wessler says the issue will continue to arise as states struggle to adapt to the use of this technology.
While the looming decision in Maryland won’t be legally binding in other states, it could establish a precedent as judges are repeatedly asked to address these questions about Stingray use.
“It has the potential to be a persuasive source of authority as courts around the country grapple with how to apply the old protections of the Fourth Amendment to this new technology,” Wessler told TakePart.
Related stories on TakePart:
• This Drone Law Put Privacy Front and Center but Left Out Something Even Scarier
• Edward Snowden Probably Deserves Credit for These 3 Privacy Victories
• Appeals Court Backs NSA’s Phone Data Surveillance Program
Original article from TakePart
