By: David Hart,
It is no longer the era of buddy-cop stakeouts, waiting outside of a suspect’s home or hangout. Instead, law enforcement has been employing a device that pinpoints a supposed criminal’s location. The most well-known brand of this device is the StingRay, which has become the catch-all term for these devices. The StingRay disguises itself as a cellphone tower, tricking the suspect’s phone into transmitting data to it.[1] This may seem fine at first glance; after all, who doesn’t want criminals off our streets? Unfortunately, it’s not as cut and dry as it seems. The device does not simply target one cellphone. It dupes all cell phones in an area to send information.[2] Additionally, law enforcement does not always obtain a search warrant before utilizing StingRays.[3] So not only is a net being dragged through innocent citizens’ data, oftentimes law enforcement does not explain their probable cause to a magistrate, in an attempt to obtain a warrant, before targeting a suspect’s cell phone. The use of these devices raises significant privacy and civil liberty concerns.
The law struggles to keep up with the sprinting advance of technology, but it seems the judiciary is finally closing the gap. An important development has recently come from the D.C. Court of Appeals, through the case of Jones v. United States. Jones was convicted on charges of sexual assault and robbery.[4] Law enforcement had used a StingRay-type device (a cell-site simulator) to locate him, without obtaining a warrant.[5] Jones argued that this was a 4th amendment violation but the trial court denied his claim.[6] Jones then appealed his conviction to the D.C. Court of Appeals. The Court found that “the government violated the Fourth Amendment when it deployed the cell-site simulator against him without first obtaining a warrant based on probable cause.”[7] In the words of Judge Beckwith, “under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cellphone invades the person’s actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search.”[8]
The D.C. Court of Appeals is not the only authority that has spoken on the issue of StingRays. In 2016, The Maryland Court of Special Appeals held that law enforcement must have a valid warrant to use cell-site simulators.[9] The Baltimore City Police Department had used a cell-site simulator to locate Kerron Andrews, who was wanted on charges of attempted murder.[10] They tracked his cellphone with this device and located him in a residence.[11] Andrews claimed that the use of this device without a warrant was a violation of the 4th amendment. The Court found that the use of the cell-site simulator was indeed a 4th amendment violation and suppressed the evidence found in the residence where Andrews was located.[12]
Virginia is one of the states that has passed laws restricting the use of StingRay devices. VA Code § 19.2 – 70.3 K. provides that: “an investigative or law-enforcement officer shall not use any device to obtain electronic communications or collect real-time location data from an electronic device without first obtaining a search warrant authorizing the use of the device if, in order to obtain the contents of such electronic communications or such real-time location data from the provider of electronic communication service or remote computing service, such officer would be required to obtain a search warrant pursuant to this section.”[13] In essence, this means that if law enforcement would need a warrant to get location data from a cell-service provider then they also need a warrant to use a StingRay device.
With courts ruling against warrantless use of StingRay devices and legislatures passing laws requiring warrants, it seems we’re headed in the right direction in regards to cell-phone locating and our 4th amendment rights.
[1] See Cyrus Farivar, Another Court Tells Police: Want to Use a Stingray? Get a Warrant (Sep. 22, 2017), https://arstechnica.com/tech-policy/2017/09/another-court-tells-police-want-to-use-a-stingray-get-a-warrant/
[2] Id.
[3] See generally, Jones v. United States, 168 A.3d 703 (2017); State v. Andrews, 227 Md. App. 350 (2015).
[4] See Jones v. United States, 168 A.3d 703, 707 (2017).
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 715.
[9] See generally, State v. Andrews, 227 Md. App. 350 (2015).
[10] Id. at 354.
[11] Id.
[12] See generally, State v. Andrews, 227 Md. App. 350 (2015).
[13] See Va. Code Ann. § 19.2 – 70.3 (2017).
Image Source: https://www.aclu.org/sites/default/files/styles/action_sidebar_wide_280x240/public/field_image/web15-siteimages-act-ecpa-2400×960.jpg?itok=vaHqbpk5.