By: Derek M. Ciulla
Until this month, the Federal Bureau of Investigation (FBI) and many local police departments have been using a surveillance device that can track you through your cell phone and search your cell phone without a warrant. Moreover, without you even knowing about it. The device is a cell site simulator called the “StingRay.” The StingRay mimics a cell tower and essentially tricks all nearby cell phones to connect to it. Once connected, it can expose critical information to law enforcement, such as, your phone number, the phone’s serial number, the precise location of the phone, text messages and emails.
The StingRay was originally designed to hunt terrorists overseas, however, it has become a popular device with local and federal law enforcement agencies to ultimately combat crime domestically. The issue is, the Stingray does not only engage with the criminal’s phone intended in the investigation, it engages with every phone in the vicinity of the device. This obviously becomes a privacy issue of major proportions. In Riley v. California, the United States Supreme Court held that under the Fourth Amendment of the United States Constitution, a warrant is required to search a mobile phone even in search incident to an arrest cases. See Riley v. California, 134 S. Ct. 999 (2014). This decision, however, has seemingly fallen on deaf ears. In a recent Baltimore Sun story it was reported that the use of cell site simulators were a secret until a detective testified that Baltimore City police officers have used the device over 4,300 times since 2007. Other states and localities have reported using it well over 1,000 times. There is a high probability that you and I, at one point or another, have had our information in our cell phone exposed by local or federal law enforcement agencies during one of the many investigations using the device. What is more alarming is that we had no idea our information had been exposed.
Perhaps we can find solace in the fact that the FBI and some local police departments have been on record stating that they only retain the location data that is relevant to an investigation and immediately discard all other data incidental to the investigation. It should also be noted that despite the fact that many law enforcement agencies at both the local and federal level have used the device without obtaining a warrant, it is not to say that they never do. In U.S. v. Rigmaiden, a 2013 Ninth Circuit case, the FBI did indeed obtain a warrant to use the StingRay to aid in the arrest and charging of Daniel Rigmaiden with mail and wire fraud, identity theft and conspiracy. However, Rigmaiden sought to suppress the information supplied by the StingRay on the grounds that the search warrant requested by the FBI failed to properly describe what information was sought and the way in which the FBI intended to retrieve it. In other words, even though the FBI obtained a warrant, Rigmaiden argued that the use of the StingRay was outside the scope of the warrant they were issued. Ultimately Rigmaiden’s motion was denied as the court reasoned that the language of the warrant did encompass the use of the StingRay.
Alas, in a NY Times story that surfaced this month, it was reported that the Justice Department will regularly require agents to seek warrants before using the secretive device. The U.S. Deputy Attorney General, Sally Q. Yates, stated that federal investigators could not use the cell site simulator to intercept content such as emails or text messages. She went on to say that, “[T]he policy is really designed to address our practices, and to really try to promote transparency and consistency and accountability – all while being mindful of the public’s privacy interest.” This may give you some comfort going forward, but it surly does not undue all the years of incidentally invading our privacy. Furthermore, this new policy only applies to law enforcement agencies at the federal level and does not require local police departments to get a warrant. This means that warrantless searches can and will continue in our states, cities and towns.
Like many concerned citizens and civil libertarians, I am left scratching my head. If the Supreme Court does not allow a person’s phone to be searched incident to an arrest without a warrant because it violates the Fourth Amendment, then how could the StingRay be used without a warrant for all of these years prior to the Department of Justice’s new policy? Secondly, even with this new policy, I still see major violations of the Fourth Amendment at the state and local level. The new policy is definitely a step in the right direction to provide better constitutional protections for American citizens, but as long as this policy has no legal consequence on local and state law enforcement agencies, our privacy will continue to be unconstitutionally infringed upon.
Derek is currently a 3L evening division student and a Staff Member with the Journal of High Technology Law at Suffolk University Law School. He holds a B.S. in Sociology from Pace University.
