Federal Bill Introduced To Add A Warrant Requirement To Stingray Deployment

from the reclaiming-the-Fourth,-bit-by-bit dept

House Oversight Committee chairman Jason Chaffetz, along with his Senatorial counterpart Ron Wyden, is tackling something he promised to act on after he was finished excoriating the leaky Office of Personnel Management for ruining the lives of millions of Americans: Stingray devices.

A bipartisan group of House and Senate lawmakers introduced legislation Wednesday requiring police agencies to get a search warrant before they can deploy powerful cellphone surveillance technology known as “stingrays” that sweep up information about the movements of innocent Americans while tracking suspected criminals.

“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements,” said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who introduced the bill with Reps. Jason Chaffetz, R-Utah, and John Conyers, D-Mich. “Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times.”

What the bill would do is codify the DOJ’s “Stingray Best Practices” policy, which implemented a warrant requirement for cell site simulator deployment — albeit one that wasn’t really a requirement because it wasn’t statutorily-required. This would be the statutory requirement the DOJ’s better-late-than-never approach to constitutionality was missing.

But the bill doesn’t limit itself to cell tower spoofers. It also would add a layer of protection to data the DOJ has long argued isn’t covered by the Fourth Amendment.

The legislation introduced Wednesday, called the Geolocation Privacy and Surveillance (GPS) Act, would require a warrant for all domestic law enforcement agencies to track the location and movements of individual Americans through GPS technology without their knowledge. It also aims to combat high-tech stalking by creating criminal penalties for secretly using an electronic device to track someone’s movements.

This legislation is the sort of thing courts are apparently looking for when they kick crucial issues down the road. When outdated statutes present opportunities to redefine the Fourth Amendment’s confines, judges are frequently willing to tell plaintiffs and defendants to take it up with Congress if they don’t like the answer/non-answer they’re presented with.

The Supreme Court is no exception. When it (sort of) found warrants might be a good idea when deploying GPS devices for long-term tracking, it never went quite so far as to say a warrant should be a requirement in all cases. It seemed concerned about the length of the tracking but left it at PROBABLY when all was said and done.

The DOJ has often argued that several outdated statutes should be updated to reflect the changing contours of today’s connected, always-online world. But this is not the sort of thing it’s ever argued for. It would much prefer to see its power and reach expanded at the expense of Americans’ privacy. This bill, if passed, wouldn’t necessarily fix what’s wrong with past legislation and jurisprudence. But it will at least prevent multiple law enforcement agencies from deploying these invasive devices on a whim, or using them to engage in mass surveillance just because they can.

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Comments on “Federal Bill Introduced To Add A Warrant Requirement To Stingray Deployment”

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TechDescartes (profile) says:

I’ll offer a minor quibble with Section 2605(d):

It is a complete defense against any or criminal action brought against an individual for civil conduct in violation of this chapter if such individual acted in a good faith reliance on—

  1. a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;
  2. a request of an investigative or law enforcement officer under section 2604; or
  3. a good-faith determination that an exception under section 2602 permitted the conduct complained of.

Notice that the third item gets two "good-faith" limitations (though the first one is missing the hyphen): "a good faith reliance on a good-faith determination". It seems clear that the "good faith reliance" is on the part of the alleged offender. Who gets to make the "good-faith determination" that an exception applies?

It seems that the statute should be written as allowing a complete defense of "a good-faith belief that the conduct was subject to":

  1. a lawful court warrant or order …
  2. a lawful request of an investigative or law enforcement officer …
  3. an exception under section 2602 …
Bergman (profile) says:

Re: Sincerity?

It could easily be spun as protecting law enforcement.

Why? Because under EXISTING laws, interception of an electronic communication is a felony if you don’t have a warrant. Unauthorized access of a computer — and a smartphone has a closer technological relation to a computer with a modem than an old school telephone — is a felony if you don’t have a warrant.

Every time police have deployed a Stingray without a warrant, they have committed at least one felony. By requiring they get a warrant, they are shielded from criminal prosecution if they do so.

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