By William Gray

Are you comfortable with people looking at your phone? Today it seems people would rather chew their arm off rather than have someone look over their shoulder while they’re texting. But what do these people have to hide? With the vast majority of cellphone users being law-abiding citizens, they should have nothing to fear right? This is where many people have an issue. Just because they are abiding by the rules doesn’t mean they want their privacy to be invited without invitation. In fact, the preservation of the private individual’s right to privacy has been the cornerstone to the American criminal justice system since the Bill of Rights was ratified in 1791.

The Fourth Amendment states “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Prior to ratification, there was no defense to the infringement of a private individual’s right to privacy. With this in mind, the founders imbedded the warrant requirement within the Fourth Amendment protecting against “unreasonable searches and seizures” by requiring the issuance of a warrant supported by probable cause.

The Fourth Amendment has been the subject of controversy and the focal point of criminal investigations since ratification. With the goal of restricting the conduct of police officers during criminal investigations, it has also created a reasonable expectation of privacy in a citizen’s person, home, and effects. As technology becomes increasingly more advanced, police have developed new ways to conduct criminal investigations. The issue is whether these tactics are in compliance with the Fourth Amendment’s protection against unreasonable searches and seizures.

One of these new police tactics involves the use of a cellphone-sweeping device known as a “StingRay.” StingRay technology has the capability of mimicking a cell tower and can pinpoint the location of a cellphone without as much as a phone call or text message. In fact, some of these devices even have the ability to intercept phone calls and text messages. By “sweeping-up” cellphone data, police are able to locate suspects with ease. The down side? The StingRay may be “sweeping-up” data from your cellphone if you are in the same neighborhood as their suspect. To make matters worse, it was recently released that these devices have been in use by “at least 72 state and local law enforcement departments in 24 states plus 13 federal agencies” without our knowledge. This takes the eavesdropping over your shoulder scenario to new heights.

Does the public have the right to know their cellphones are being monitored without their consent simply due to their location within a neighborhood? According to a statement made by the United States Fish and Wildlife Service, an exception to the Freedom of Information Act “protects law enforcement records if their release would disclose techniques and procedures for law enforcement investigation and prosecutions.” According to the FWS, law enforcement agents are not required to disclose the use of StingRay technology to the public when being used during investigations and prosecutions. However, after the New York Civil Liberties Union was able to force the disclosure of NYPD records, it was discovered that StingRay technology has been in use over 1,000 times since 2008. With such a wide ranging sweeping capability, is the use of StingRay tech constitutional?

In Kyllo v. United States, the court was faced with the issue of whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a search within the meaning of the Fourth Amendment. In this case, police used thermal imaging technology to help determine if heat lamps commonly associated with growing marijuana were within a private residence. This device effectively enhanced law enforcement senses by allowing them to see inside a private residence without physically invading their privacy. The court held that obtaining evidence by sense-enhancing technology and information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search. The court furthered their holding by only limiting the use of sense-enhancing technology that is not currently available to the public.

By applying the rationale from Kyllo, why should StingRay technology be available to law enforcement without a warrant? Following this reasoning, it likely shouldn’t. In fact, New York State Supreme Court Judge Martin Murphy agreed by stating that “[b]y its very nature, then, the use of a cell site simulator intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause.” Judge Murphy is not alone in his application of the Fourth Amendment to “cell site simulator” technology. In the July 2016 case of United States v. Lambis, the DEA was able to use cell site location information to determine that their suspect’s cellphone, which was believed to be involved in a cocaine distribution conspiracy, was in the general vicinity of the Washington Heights area, but required StingRay technology to acquire a more precise location. Without a warrant authorizing its use, the DEA used StingRay technology to identify the particular apartment where the suspect’s cellphone was located. The Defendant argued for the suppression of the evidence gathered from his apartment because the use of the StingRay was a warrantless search in direct violation of his Fourth Amendment rights. Ultimately, US District Judge William Pauley ruled that “[a]bsent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”

Although there is plenty of evidence indicating that a warrantless use of StingRay technology is in violation of the Fourth Amendment, this is not to say that the lawful use of this technology is not without its benefits. In fact, of the roughly 1,000 usages of StingRay tech by NYPD since 2008, the information gathered has aided law enforcement personal in locating violent crime suspects and even missing persons. When weighing the cost-benefits of StingRay technology it is important to keep in mind the technology’s potential if used in a Constitutionally conforming manner.

Student Bio: William Gray is currently a 3L at Suffolk University Law School and a Lead Articles Editor of the Journal of High Technology Law. He holds a B.S. in Political Science with a minor in Criminal Justice from Quinnipiac University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.


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