Cops use cellphone tracking without warrants "due to Non-Disclosure Agreement"

[Matthew Cline]

The police in Florida have used "Stingray" cell phone tracking technology over 200 times without getting a warrant, or even ever telling a judge about it. It seems the reason for this is that they signed a Non-disclosure agreement^WP with the company that provided the technology. More information can be found at the Wired article. (NOTE: A "Stingray" device is something which pretends to be a cellphone tower and thus tricks a cellphone into revealing it's number and location)

If this really is the reason the cops didn't reveal what they're doing, that would be a hole in the 4th amendment big enough to pilot the Death Star through. It would provide incentives for any company that sells/leases equipment to the cops to include such an NDA, since many cops would no doubt like to use that equipment without having to obtain warrants. And if the police could outsource something they did to a company with an NDA...

[Newtons Bit]

I think the courts response to this will be "lol, stahp", or something to that effect.

[casebro]

I doubt that the contract with the company is an excuse to violate a suspect's civil rights.

BUT, what with the way cell service works, do you have any expectation of privacy anyhow?

[Newtons Bit]

Originally Posted by casebro

BUT, what with the way cell service works, do you have any expectation of privacy anyhow?

Yes. Just because my cell phone provider can track my location, and in effect must as part of normal operations, doesn't preclude me from believing that they will only use that information as required to provide the service I am contracting them for.

[newyorkguy]

Originally Posted by casebro

...BUT, what with the way cell service works, do you have any expectation of privacy anyhow?

It seems to me the question isn't, do you have an expectation of privacy but instead, do you have a legal right against law enforcement tracking you by monitoring your cell phone position?

Unfortunately the answer to that is apparently no, you do not. At least not acording to this news article from last August.

Quote:

Last week, the Fifth U.S. Circuit Court of Appeals overturned a magistrate judge’s 2010 ruling that made cell phone data constitutionally protected from government intrusion under the Fourth Amendment...Link

However some states, like Maine and Montana, do not agree. This issue is expected to go to the U.S. Supreme Court eventually.

The sticky issue is what’s known as the third-party doctrine. This allows the government access to any information you have given to someone else, someone like a wireless service provider. The doctrine was developed in the 1970s, before cell phones and the Internet. It mostly pertained to financial data we give to banks or phone numbers we dial.

[Roger Ramjets]

Originally Posted by Newtons Bit

Just because my cell phone provider can track my location, and in effect must as part of normal operations, doesn't preclude me from believing that they will only use that information as required to provide the service I am contracting them for.

But this has nothing to do with your cell phone provider. Stingray simply listens to the signal that your cellphone is broadcasting into public airspace. It is not operated by your cell phone provider, and they probably don't even know when one is being used.

Originally Posted by WIRED

When mobile phones — and other wireless communication devices like air cards — connect to the stingray, it can see and record their unique ID numbers and traffic data, as well as information that points to the device’s location...

The government has long asserted that it doesn’t need to obtain a probable-cause warrant to use the devices because they don’t collect the content of phone calls and text messages but rather operate like pen-registers and trap-and-traces

Originally Posted by casebro

an excuse to violate a suspect's civil rights.

Like the 'right' to use a stolen cellphone without fear of it being traced back to you?

Quote:

The case involves James L. Thomas who was convicted of sexual battery and petit theft.

According to the appellate court judges, after a young woman reported on September 13, 2008 that she had been raped and that her purse, containing a cellphone, had been stolen, police tracked the location of her phone about 24 hours later to the apartment of Thomas’ girlfriend.

[This is The End]

Originally Posted by Roger Ramjets

Like the 'right' to use a stolen cellphone without fear of it being traced back to you?

Why are you comparing the police tracking my cellphone with my consent to catch a criminal, to them tracking my cellphone without my consent to gather information in an investigation about me?

[The Norseman]

Once again, people are missing the point: the point is not that I must have a specific constitutional protection but that the government must have an overriding concern in order to do something in the first place.

Remember, the fourth amendment is not the only amendment which could apply; the ninth and tenth can apply as well, for example.

[Hubert Cumberdale]

Ah, an IMSI grabber.

You wouldnt need a judge's authority to use one in the UK either.

[Kestrel]

Isn't listening to cell phone transmissions a violation of Federal law?

[Newtons Bit]

Originally Posted by Kestrel

Isn't listening to cell phone transmissions a violation of Federal law?

Yes, but only the voice communication part of it because... reasons...

[Kestrel]

Originally Posted by Newtons Bit

Yes, but only the voice communication part of it because... reasons...

If I set up a WIFI connection that mimics the WIFI in Starbucks to collect data from unsuspecting wireless users, the cops and the courts would see that as a crime.

The Wired article indicates the Stingray device works that same way.

[Hubert Cumberdale]

Originally Posted by Kestrel

If I set up a WIFI connection that mimics the WIFI in Starbucks to collect data from unsuspecting wireless users, the cops and the courts would see that as a crime.

The Wired article indicates the Stingray device works that same way.

IMSI grabbers mimic a base station so they dont always intercept the comms, they often just locate the phones connecting to it. I'm not sure what the case is here.

[The Norseman]

Originally Posted by Hubert Cumberdale

IMSI grabbers mimic a base station so they dont always intercept the comms, they often just locate the phones connecting to it. I'm not sure what the case is here.

The case is that the government (read: the police) need to have a warrant (generally speaking) before collecting evidence of criminal behavior.

Just because the technology is there does not -- in any way -- give permission for the government to do wide, overreaching data collection.

The constitution is meant as a limitation on the power of the government and not a limitation of the people. I really wish more people would remember that.

[Hubert Cumberdale]

Originally Posted by The Norseman

The case is that the government (read: the police) need to have a warrant (generally speaking) before collecting evidence of criminal behavior.

Just because the technology is there does not -- in any way -- give permission for the government to do wide, overreaching data collection.

The constitution is meant as a limitation on the power of the government and not a limitation of the people. I really wish more people would remember that.

Well, it would be ludicrous to argue that the police need a warrant before collecting any and all evidence of criminal behavior. To wit - its hardly viable for every beat cop to obtain a warrant from a judge before they go out on routine foot patrol.

Similarly, it would be ludicrous for an officer to have to obtain a warrant just to wrote down a vehicle's registration plate.

The question is then, where is the line drawn and what level of authority is required to cross that line.

In the UK, the police would not require a court order to use an IMSI grabber for mobile phone location purposes, but the standard of evidence (proportionality and neccesity) required to gain approval for its use would be high and that would be subject to overall judicial oversight.

Of course, I realise its not the UK in question, but I would assume that similar tests of proportionality and neccesity would probably apply.

And of course, if the equipment was actually intercepting comms, it would change the position entirely.

[newyorkguy]

This is from the Wired article linked in the OP:

Quote:

The government has long asserted that it doesn’t need to obtain a probable-cause warrant to use the devices because they don’t collect the content of phone calls and text messages but rather operate like pen-registers and trap-and-traces, collecting the equivalent of header information.

The problem in this case is that police used this without telling a court. In the Tallahassee case (State v. Thomas) the police used the Stingray to locate the stolen cell phone, then executed a forcible search without a warrant. This was because the manufacturer of the device loaned it to police but insisted police sign a non-disclosure agreement. Without revealing to a judge how they obtained their information the police would not have been able to acquire a search warrant.

The ACLU is litigating this. On the grounds that law enforcement needs to operate under the supervision of the courts. That there is a clear danger of abuse when police can use tracking devices without telling anyone -- even a judge -- when, where and why they are doing it.

I agree. This is new technology and it can obviously be valuable in fighting crime. But it can also be abused. There should be some judicial oversight.

[newyorkguy]

Originally Posted by Hubert Cumberdale

Well, it would be ludicrous to argue that the police need a warrant before collecting any and all evidence of criminal behavior...

That's not what this case is about. The case in question involves the police knocking down someone's door without a warrant. They did this because they had agreed not to disclose how they obtained the information they were acting upon to anyone. Anyone, not even a judge. Having to keep that fact secret they had no grounds to obtain a search warrant.

I imagine the police, wanting to arrest a rapist decided, let's go get him. Take him off the street. Let the courts figure it out.

That's what is happening now. The courts are figuring it out.

[Dr. Keith]

Originally Posted by newyorkguy

This is from the Wired article linked in the OP:



The problem in this case is that police used this without telling a court. In the Tallahassee case (State v. Thomas) the police used the Stingray to locate the stolen cell phone, then executed a forcible search without a warrant. This was because the manufacturer of the device loaned it to police but insisted police sign a non-disclosure agreement. Without revealing to a judge how they obtained their information the police would not have been able to acquire a search warrant.

The ACLU is litigating this. On the grounds that law enforcement needs to operate under the supervision of the courts. That there is a clear danger of abuse when police can use tracking devices without telling anyone -- even a judge -- when, where and why they are doing it.

I agree. This is new technology and it can obviously be valuable in fighting crime. But it can also be abused. There should be some judicial oversight.

The use of the device doesn't seem to be a violation of the 4th Amendment, the phone was broadcasting a signal into public spaces. There is case law on the use of thermal imaging that will likely have some more precise discussions on this legal line, but my gut says this will not be a problem.

The search without a warrant is a problem and trying to hide behind the NDA will not work. Judges see confidential information all the time, it is central to their jobs to be trusted with such information.

[Kestrel]

Originally Posted by Dr. Keith

The use of the device doesn't seem to be a violation of the 4th Amendment, the phone was broadcasting a signal into public spaces. There is case law on the use of thermal imaging that will likely have some more precise discussions on this legal line, but my gut says this will not be a problem.

The search without a warrant is a problem and trying to hide behind the NDA will not work. Judges see confidential information all the time, it is central to their jobs to be trusted with such information.

Actually the phone wasn't broadcasting it's location, that information was requested by a Stinger device pretending to be a cell tower.

If the police could send a message telling your smart phone to turn on the microphone and send the audio over the air, should that be allowed without a warrant?

[Dr. Keith]

Originally Posted by Kestrel

Actually the phone wasn't broadcasting it's location, that information was requested by a Stinger device pretending to be a cell tower.

I said it was broadcasting a signal, not it's location. But to argue further along that line I would have to understand the technology better.

Someone who understands the technology should be able to apply the case law from the thermal scanning cases and get pretty close to a better answer.

My point is that the search issue is far clearer and will likely be the issue that lets a rapist back out onto the street. Yippee for cops not understanding the 4th Amendment!

[newyorkguy]

The conviction was overturned on appeal. The search was ruled illegal and the evidence gathered in the search was suppressed. The issue of the cell phone tracking was not subject to the hearing.

The conviction was reversed last November and there will be a new trial. It should be noted that this incident took place in 2008 and the accused James Thomas has been in custody ever since. In fact if Florida decides to retry him he may still be in custody.

At the appeal it was noted the police were up against a time problem. The signal from the phone belonging to the victim (who was a college student) was fading. In addition, the apartment police searched was rented by a girl friend of Thomas'. Though at first she refused to allow police to enter -- thus police forced their way in -- when she realized the seriousness of the situation she did give her consent. The trial judge ruled that was enough to allow into evidence the materials seized in the search (the victim's phone and purse) but the appeals court ruled the girl friend's consent was irrelevant because that by that time the illegal entry had already taken place.

Link to appeal transcript

[The Norseman]

Originally Posted by Hubert Cumberdale

Well, it would be ludicrous to argue that the police need a warrant before collecting any and all evidence of criminal behavior. To wit - its hardly viable for every beat cop to obtain a warrant from a judge before they go out on routine foot patrol.

Similarly, it would be ludicrous for an officer to have to obtain a warrant just to wrote down a vehicle's registration plate.

The question is then, where is the line drawn and what level of authority is required to cross that line.

Yeah, that's why I parenthetically said "generally speaking".

But you make some good points, nonetheless.

[The Norseman]

Originally Posted by Dr. Keith

The use of the device doesn't seem to be a violation of the 4th Amendment, the phone was broadcasting a signal into public spaces. There is case law on the use of thermal imaging that will likely have some more precise discussions on this legal line, but my gut says this will not be a problem.

It certainly can be a violation of the ninth and tenth amendments. I highly doubt they would ever be brought up for some odd reason I've never understood.

[casebro]

Isn't there an ap for that?

Wasn't there a cell nanny so parents could track their kid's movements?

Or did I just give away another million dollar idea?

[mgidm86]

Originally Posted by casebro

I doubt that the contract with the company is an excuse to violate a suspect's civil rights.

BUT, what with the way cell service works, do you have any expectation of privacy anyhow?

It is time to redefine the term "expectation of privacy".

[Xulld]

Originally Posted by Hubert Cumberdale

Ah, an IMSI grabber.

You wouldnt need a judge's authority to use one in the UK either.

Isn't their legislation protecting people from man in the middle attacks? If not their should be and police should not get a free pass on violating the law.

Quote:

IMSI catchers are used in some countries by law enforcement and intelligence agencies, but based upon civil liberty and privacy concerns, their use is illegal in others. Some countries do not even have encrypted phone data traffic (or very weak encryption) rendering an IMSI catcher unnecessary.

Seems not everyone is so Blase' about such indiscretions by law enforcement.