Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime . . . but hey your privacy can be invaded as if you have no Fourth Amendment rights at all. A portable device known as an IMSI catcher, also known by the generic term stingray, acts like a fake cell tower and tricks your mobile device into connecting to it even if you are not on a call. It is used for real time location tracking; some can pinpoint you within two meters as well as eavesdrop and capture the contents of your communications. There’s been a stink about them for a little more than a year, but three big privacy and civil liberty groups, the ACLU, EPIC and the EFF have all warned that the secretive devices threaten your rights and that the invasive technology is unconstitutional.
Now the EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden [PDF], “in what will be the first case in the country to address the constitutional implications of a so-called ‘stingray,’ a little known device that can be used to track a suspect’s location and engage in other types of surveillance.”
The government will obtain a court order, but apparently thinks along the terms of ‘We don’t need no stinking search warrant.’ A search warrant would need probable cause, just as the Fourth Amendment requires a reasonable suspicion that you’re actually doing something illegal before law enforcement conducts surveillance on you. The law hinges on “reasonable” and being an innocent person who happens to carry a cell phone in the vicinity of a stingray, yet manages to be tracked and monitored just the same, is not reasonable in my book. Judge Brian Owsley in Texas pushed back against the warrantless use of stingrays, not once but twice, the Wall Street Journal reported.
The EFF called stingrays, “The biggest technological threat to cell phone privacy you don't know about.” Not only does the public know little about the devices, judges are also kept in the dark when the feds apply for a court order. The government doesn’t bother to explain the technology to a judge because law enforcement wants to keep it a secret. But Magistrate Judge Owsley wrote, “Without such an understanding, they cannot appreciate the constitutional implications of their requests.” He added that without such an explanation, “the government was essentially asking him to allow ‘a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment’.”
According to the EFF, "The government now concedes that the use of the device was a 'search' under the Fourth Amendment and claims it had a warrant, despite the fact that, as we explain in our brief, 'the Order directs Verizon to provide the government with information and assistance, but nowhere authorizes the government to search or seize anything'.”
When the Electronic Privacy Information Center (EPIC) first filed a Freedom of Information (FOIA) lawsuit against the FBI to have stingray documents released, it reported, “For more than 15 years the FBI has used cell-site simulator technology to track the location of cell phones and other communications devices.” The government fought against the discovery and the FBI stalled, saying it will need up to three years to find and process all the documents. Of the 25,000 pages the FBI found, it released only 67 heavily redacted documents [PDF].
While stingrays are not cheap, they are portable. They can be carried around by hand, or mounted to vehicles and drones, and could even be beamed into your home to snoop on you, but it’s not only the feds using the devices. After filing its own FOIA, L.A. Weekly received documents that prove the Los Angeles police also use stingray, joining other stingray-using police departments like Miami, Fort Worth and Gilbert, AZ.
The EFF wrote, "If uninformed courts approve the unregulated use of Stingrays, they are essentially allowing the government to enter into the home via a cellular signal at law enforcement’s discretion and rummage at will without any supervision. The government can’t simply use technology to upend centuries of Constitutional law to conduct a search they would be prevented from doing physically." Furthermore, a general court order to use a stingray was likened to an unconstitutional "all you can eat buffet." How many innocent people's communications are also captured or tracked by stingray . . . hundreds? Thousands? What happens to that obtained information?
The ACLU said, “Because stingrays are indiscriminate, highly intrusive devices that obtain information from all nearby third parties on the same cellular network, and not just the target of an investigation, there is a serious question whether they can ever be used consistent with the Fourth Amendment.”
The case is highly significant for two reasons. First, it shows that the government is using new types of technology—not just GPS and cell site location records—to track location. Second, it shows that the government is going to great lengths to keep its surveillance practices secret. The government is hiding information about new surveillance technology not only from the public, but even from the courts. By keeping courts in the dark about new technologies, the government is essentially seeking to write its own search warrants. That’s not how the Constitution works.