Google Maps is a life saver. Many of us probably wouldn’t know how to read a real map if we tried. Apple’s “Find My iPhone” app has probably saved countless cellphone users the headache and expense of hunting down or replacing their lost iPhones. Americans rely on their phones’ GPS capabilities to help them get to places, find friends and family, and even play popular games like Pokémon Go.
Although it is hard not to enjoy the convenience of having directions to practically anywhere at the tips of your fingers, Americans are learning the hard way that they’re not the only ones capable of keeping track of their movements. The United States Supreme Court’s decision to rule on the constitutionality of the government’s ability to obtain historical cell site location information (CSLI) without a warrant has garnered national attention, bringing the GPS capabilities of cell phones to the forefront of privacy law.
While the eyes of the American public may be turned to historical CLSI’s privacy implications, courts are now wrestling with a potentially more invasive form of governmental intrusion: stingrays.
Stingrays, also known as cell site simulators (CSS) or ISMI catchers, are cell phone surveillance devices that mimic cell phone towers, so that cell phones send out their ID numbers to it, recognizing it as the strongest “cell tower” in the area. Although the size of these devices varies, they are usually roughly the size of a small suitcase that police can carry with them in their patrol vehicles. Police use stingrays to discover cell phone locations–and by extension the owner of the phone–by moving the device around to find out from which direction the targeted phone’s signal is stronger. Some models have the capabilities of doing even more invasive things like intercepting live calls and reading incoming texts. These devices do not merely detect the suspect’s phone, but also the surrounding phones in the area, possibly revealing private data from numerous users.
Part of the reason Americans know so little about stingrays and the government’s use of them is because the devices have often come with non-disclosure agreements requiring the police departments and agencies that have them not to reveal their use. The ACLU has reported that at least seventy-two agencies in twenty-four states and the District of Columbia have these devices. There are also reports that Immigration and Customs Enforcement (ICE) agents use stingrays to locate undocumented immigrants, though the officers in the specific incident cited did obtain a search warrant before deploying the stingray.
However, the Wild West days of unrestricted government use of stingrays may be numbered. A federal court in Oakland, California has just ruled that government officials need a warrant to use stingrays because governmental use of such devices constitutes a search under the Fourth Amendment.
In that case, United States v. Ellis, an off-duty officer drove to the scene of where a police officer had been shot and deployed the stingray in an attempt to find Ellis, the man accused of the shooting. Although the stingray failed to locate Ellis, an FBI agent tried again the next day with his own device and located Ellis’s number immediately, though it took an hour to locate the actual phone.
United States District Judge Phyllis Hamilton held that the government’s use of the stingray device to locate Ellis constituted a search requiring a warrant and that he had a reasonable expectation of privacy in his real-time location information. In doing so, she noted that cell phone users have even stronger privacy implications in the data gathered from stingrays than in historical CSLI because they usually keep their cell phones on their persons or within their reach at all times. Thus, if you find one, you find the other.
In making this ruling, the court pointed to another federal circuit and a Maryland appellate court that have both held that law enforcement officers need warrants to use stingray devices. The Court of Special Appeals of Maryland used strong language in United States v. Andrews to denounce the government’s secrecy of such devices when making its decision to suppress the evidence gathered: “We perceive the State’s actions in this case to protect the Hailstorm [a specific type of stingray] technology, driven by a nondisclosure agreement to which it bound itself, as detrimental to its position and inimical to the constitutional principles we revere.”
Although it may be some time before our privacy laws fully catch up with today’s modern technology, the courts’ decision in Ellis and Andrews are good starting points. Maybe if other courts decide to follow suit, the more paranoid of us won’t feel the need to turn off our cell phones when we’re not using them. Maybe.