Cell Phone Tracking: Did You Consent?

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The Intercept reports that the police’s warrantless use of Stingrays technology to spy on citizens suffered a major blow this past Wednesday.

By:  Alice Salles

This article first appeared at VoicesOfLiberty

March 2nd, the Maryland Court of Special Appeals suppressed evidence obtained by the use of the cell-site simulator technology, also known as Stingray. This is the first time a court decides to drop evidence collected via these means. In April of 2015, a police detective from Baltimore, Maryland testified claiming that the police department had used Stingrays 4,300 times since 2007. In most cases, the detective claimed, judges or defendants weren’t aware of the operations.

The Maryland court’s ruling, The Intercept argues, “has the potential to set a strong precedent about warrantless location tracking.”

According to Nate Wessler, an attorney with the American Civil Liberties Union, this ruling is important because it puts the police on notice that they must “accurately explain your surveillance activities to a judge and get a warrant, or risk your evidence being thrown out.”

Police stingray-1-and-2-high-resdepartments use the Stingray technology to trick nearby phones into allowing officers to have access to their location. These cell-site simulators sweep up data of phones being used nearby, gathering private information without due process.

The case that rendered the recent ruling involves the 2014 arrest of Kerron Andrews, a suspect in a shooting that resulted in injuries of three people. To locate the suspect, police referred to a “pen register” application, not a warrant. Pen register applications, The Intercept explains, do not require officers to establish probably cause. But what that particular application stated was that officers were to obtain the information from Andrews’ wireless service provider, not from a Stingray.

Shortly after, the police used a high-tech Stingray known as “Hailstorm.” In no time, police officers located Andrews and the murder weapon. Unfortunately, the judge who signed the application wasn’t notified about the change in tactics. In a June hearing, the police department was called in to testify about the use of the Stingray, which prompted the judge to accuse officers of withholding information from the defense.

From The Intercept:

“After the trail court threw out the Stingray evidence, the Maryland attorney general alarmed civil liberties groups by arguing that anyone who keeps their phone turned ‘on’ is consenting to being tracked by police. The full ruling, which has not yet been issued, will presumably reject that argument.

During the oral argument before the appeals court in February, one of the judges called the police’s pen register application a ‘completely false document,’ and ‘completely disingenuous.’

The Department of Justice issued guidelines in September requiring federal officers to apply for a warrant before using a Stingray. Those guidelines only applied to the seven agencies known to use them, not to state and local police. In 2014, the state of Maryland passed a law requiring a warrant for police to track an individual’s current or real-time location. The law only affects cases going forward, so it did not influence Andrew’s case.”

On Tuesday, March 1st, Washington D.C. lawmakers held a hearing on a bill that would require all police departments to obtain a warrant prior to making use of Stingrays. During the hearing, House Oversight Committee Chairman Jason Chaffetz claimed that law enforcement shouldn’t be allowed to track an individual’s location and gather details about his life just because it’s now easy to do so.

“Get a warrant,” he said.

This article first appeared at VoicesOfLiberty