POSTED BY Christopher Mills
On June 5, 2013, The Guardian reported that the US government, specifically the NSA, had been listening into the phone calls, reading the text messages and even reading emails of U.S. citizens. This revelation changed how many Americans perceived their right to privacy from the government in relation to the use of technology. It appears as though that expectation of privacy is again being challenged, but this time, by the Justice Department.
The Wall Street Journal released an article on November 13, 2014, describing a program called the U.S. Marshals Service program that has been in use by the Justice Department since 2007. This program equips small planes with devices called “dirtboxes,” which mimic cell phone towers. Cell phones are designed to connect to the strongest cell tower signal in their surrounding location. When the plane is flying near a cell phone with this device on, the cell phone is tricked into believing the dirtbox is actually a cell phone tower. Once this happens, the cell phone sends its information to the dirtbox as it would with any normal cell phone tower. Cell phones with encryption software are no safer than regular phones as they don’t protect against this type of intrusion. Even cell phones that are not in use are not protected from identification through this system.
U.S. Marshalls use this software to locate criminals by flying around areas where they believe suspects being investigating are located. The dirtbox equipped plane then scans all of the cell phones in that area, lifting all their data into the dirtbox. In busy metropolitan areas, this could mean hundreds of thousands of cell phone searches per flight. Once the dirtbox finds the cell phone it is looking for, it “lets go” all the non-suspect cell phone information. The plane then moves onto another area and tests the signal strength of the suspects cell phone to attempt to pin an exact location on that individual. This system has been effective to place suspects within three meters of where they are standing.
These types of devices are not new to law enforcement. Similar devices called “Stringrays” have been in use by the government for years. Stingray devices have a much smaller range of use and typically are attached to cars driven by U.S. Marshalls tracking a suspect. While Stingrays may be able to search a few hundred phones within its immediate proximity, dirtboxes are able to search thousands.
At this time, we have more questions about this process than answers. It is known that the U.S. Marshalls using this program have been getting court orders to search for the suspect’s phones, but it is unclear exactly how much information about the process they disclosed to the judges. It is also unclear what procedures are in place to ensure that no information is stored from the innocent American cell phones that were picked up by the dirtboxes.
As with any privacy issue, we must balance the intrusion into innocent Americans expectation of privacy versus the need for the police to quickly and effectively locate criminals to keep the public safe. So long as these dirtboxes are immediately dropping all non-suspect cell phone data without storing any information for potential future use, the intrusion on innocent citizen privacy is minimal. This added intrusion must be balanced against the need to find each particular suspect and a determination should be made if there is a less intrusive, reasonable method of locating the suspect. Where there is no reasonable alternative, and extrinsic circumstances make it so the suspect must be located quickly, this method could be reasonable. This will all be contingent on the government quickly and completely disposing of all non-suspect cell phone information gathered without any substantial or unnecessary intrusion into said information.
Bio: Christopher Mills is a staff member of the Journal of High Technology Law and a 3L at Suffolk University Law School.
