Come back with a warrant! That’s what the D.C. Court of Appeals told law enforcement last month, when it ruled that the use of cell site simulators without a warrant violates Americans’ Fourth Amendment rights. While there are still problems with the way these devices are used, this ruling is a huge win for due process and privacy rights.
Cell site simulators are devices that replicate cell towers and trick phones into sharing location and data with them, allowing law enforcement to track a suspect’s every move. With some of the more advanced cell site simulators---ostensibly banned in the US---police can even listen in on conversations.
Police in New York City have used the tool without a warrant more than 1,000 times since 2008.
The Stingray, the most popular brand of the cell site simulator, was originally created by the defense contractor Harris Corporation to deal with military and terror investigations. Sadly, since that time, the device has been deployed predominantly in domestic policing. It has been used in a variety of non-military and non-terror investigations, including hunting down a suspect who stole $60 worth of food, and the deportation of a non-violent illegal immigrant. Police in New York City have used the tool without a warrant more than 1,000 times since 2008.
While some privacy protections previously existed, they were very weak. In 2015, the Justice Department issued a ruling directing agencies to obtain a warrant before using any cell site simulators. However, that ruling is not binding for state and local police departments, who have routinely ignored the order.
In the case heard by the D.C. Court of Appeals, Prince Jones was accused of assaulting and robbing two different women he met online in 2013. When Jones allegedly robbed each woman, he also took their phones. Police then used the Stingray to track down the women’s phones, leading them to Jones. Because they failed to obtain a warrant before doing so, all charges against Jones have since been dropped. Police did a disservice to the victims in this case by failing to respect due process and obtain a warrant. If law enforcement had gone through the proper legal channels, the charges against Jones would have likely been upheld.
You could argue the use of the Stingray to track down Jones was justified because of the appalling nature of his crimes, but the Stingray is not foolproof. If Jones were to have pawned off the women’s phones after he stole them, tracking the phones could have easily led police to the whereabouts of an innocent person who played no role in Jones’ actions.
When the Stingray is deployed, it scoops up location data from all nearby cell phones.
Even in instances where police obtain a warrant for the use of a Stingray, there are still huge concerns, particularly the potential for dragnet collection of location data not relevant to the investigation. When the Stingray is deployed, it scoops up location data from all nearby cell phones, putting innocent people’s privacy rights at risk.
While federal law enforcement has promised the device isn’t used to collect the actual data of phone calls, texts or anything else, the device has those capabilities. And even if officials are following through on their promise to only collect metadata, that in and of itself is incredibly intrusive. Metadata can paint a picture of who you call, when you call them, and how long your conversation is, revealing intimate details of who you choose to interact with. So while requiring a warrant is certainly a step in the right direction, any time the Stingray is used there will be collateral damage.
Victory for privacy rights.
In the digital era, law enforcement has a whole host of tools at its disposal, but the Stingray should not be one of them. Requiring police to get a warrant before using this device is a certainly a victory for privacy rights, but ideally, police should not be able to deploy the device domestically. After all, it’s meant to hunt terrorists and enemy agents, not burglars and muggers.
Dan King is an advocate for Young Voices and a journalist residing in Arlington, Virginia. He writes about free speech, mass surveillance, civil liberties and LGBT issues. He can be found on Twitter @Kinger_Liberty.