More details are emerging on yet another secret program used by federal law enforcement to locate people using their mobile phones... but without obtaining warrants. The WSJ has the scoop on what's generically referred to as Stingray tracking devices
(even if the actual products go by a few names, and only some are actually called Stingrays). They appear to be devices that mimic mobile phone towers. The feds use them hoping to have the phones of people they're tracking connect to the device (instead of a real mobile phone tower), and then using signal strength to figure out how far away they are. Do that a few times and you can triangulate someone's location, even if they're not making a call, and without having to ask the telcos for any location info (which, so far, they've been more than happy to turn over anyway).
They apparently used this technology to arrest a guy named Daniel David Rigmaiden, but he's now causing some trouble. That's because he's asking for the details of how he was found, and the court seems equally concerned that this was done outside of the bounds of the Fourth Amendment. It won't surprise you to discover that law enforcement regularly uses such Stingrays without a warrant. Apparently, the court is skeptical of the government's claim that it doesn't need a warrant to use such a device:
In a February hearing, according to a transcript, Judge Campbell asked the prosecutor, "Were there warrants obtained in connection with the use of this device?"
The prosecutor, Frederick A. Battista, said the government obtained a "court order that satisfied [the] language" in the federal law on warrants. The judge then asked how an order or warrant could have been obtained without telling the judge what technology was being used. Mr. Battista said: "It was a standard practice, your honor."
Judge Campbell responded that it "can be litigated whether those orders were appropriate."
Last week, the feds argued that they should not have to explain how they tracked Rigmaiden, because it would reveal too much information "since its public release could harm law enforcement efforts by compromising future use of the equipment." So, we can't tell you if the tracking system we use violates the 4th Amendment, because, you know, you might stop us from using it. Very compelling, but all too typical of law enforcement these days. Hopefully the court rejects the argument.
Later in the article, various law enforcement officials say that they can use the device since it only detects location, but doesn't eavesdrop. That's pretty questionable. The 4th Amendment doesn't make such a distinction. In fact, reading the 4th Amendment:
The 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.
It would seem that using such a device to locate a person in their house without a warrant seems to clearly violate the text of the Amendment. Hopefully the court will agree.