Appeals Court Tells Baltimore PD To Start Coughing Up Information About Its Cell Site Simulators

from the no-more-hanging-around-in-the-shadows dept

The Baltimore Police Department was an enthusiastic early adopter of cell site simulator technology. In 2015, a Baltimore detective admitted the department had deployed its collection of cell tower spoofers 4,300 times since 2007.

The best estimate on how many of those 4,300 deployments ever showed up in court documents remains near zero. The Baltimore PD hid its deployments behind pen register orders, ensuring judges and defendants never knew the departments was using cell site simulators to track down suspects.

A little bit of information has reached the public domain in recent years, showing the Baltimore PD was more willing to toss cases than expose its use of Stingray devices. Judges were willing to toss cases too, once it was determined these secret deployments violated the Fourth Amendment.

There are now three Supreme Court rulings that directly affect Stingray deployments, with the most recent being the Carpenter decision. If the government needs a warrant to obtain historical cell site location info, it stands to reason a warrant should be required to engage in real-time tracking using Stingrays, even if the court did not specifically address this.

There’s also the Kyllo decision, which found the use of an infrared device to search a house for occupants violated the Fourth Amendment. An intrusion in which the government never actually enters the house is still an intrusion. Cell site simulators force phones inside houses to give up certain identifying information even if officers never approach the residence.

Finally, there’s the Riley decision that implemented search warrants for cellphones. A Stingray device searches cellphones, even if the search is “limited” to identifying info and location data. (Stingrays can also be used to intercept communications, but there’s been no confirmed use of this particular configuration by US law enforcement agencies.)

All of these are in play in this recent decision [PDF] by the Fourth Circuit Court of Appeals. The court does not explicitly find that a Hailstorm deployment by the Baltimore PD in 2014 was unconstitutional. But it does find that the lower court did not do enough fact-finding to determine whether it fell on the wrong side of the Fourth Amendment.

The Baltimore PD has pretty much conceded some of these points already.

Defendants concede that the Hailstorm simulator searched, at minimum, Andrews’s phone, and that its use thus required a warrant. Nor do Defendants controvert Andrews’s assertion that the Hailstorm simulator searched other cellular devices in the vicinity, or that it searched nearby homes by transmitting spoofed cell tower signals through the walls.

But the PD is still arguing that its use of a pen register order was the Constitutional equivalent of a search warrant.

Defendants instead argue that the Pen Register Order satisfied the warrant requirement and that any intrusions on third parties’ privacy interests are irrelevant to Andrews.

Those “third parties” would be everyone else in the vicinity of Andrews whose phone connected to the PD’s fake cell tower and coughed up identifying info.

Andrews prevailed in the state court, resulting in the suppression of evidence. However, his federal civil rights lawsuit hit a wall when the lower court inexplicably decided “possibly relevant to an ongoing investigation” = “probable cause.”

The federal district court found that the Pen Register Order constituted a warrant authorizing use of a Hailstorm simulator.

Pen registers do not require probable cause. If the judge had been informed that the PD was going to deploy a device that would search dozens of phones to find the one possessed by Andrews (and locate him that way), they would likely have demanded a higher standard than this bare minimum.

The Appeals Courts says there’s not enough on the record to reach a conclusion about the Constitutionality of this cell site simulator deployment. So, it’s handing it back to the lower court with a long list of questions that need to be answered before a decision can be reached.

Specifically, on remand, the district court is directed to conduct factfinding into the following characteristics of the Hailstorm cell site simulator:

(1) The maximum range at which the Hailstorm simulator can force nearby cellular devices to connect to it.

(2) The maximum number of cellular devices from which the Hailstorm simulator can force a connection.

(3) All categories of data the Hailstorm simulator may collect from a cellular device, regardless of whether such data is displayed to the Hailstorm simulator’s operator in the course of locating a target phone, including by way of example and without limitation: cellular device identifiers (such as international mobile equipment identity (“IMEI”) numbers, international mobile subscriber identity (“IMSI”) numbers, and electronic serial numbers (“ESN”)); metadata about cellular device operations (such as numbers dialed or texted, or webpages visited); and, most especially, the content of voice or video calls, text messages, emails, and application data.

(4) What data in (3) may be stored by the Hailstorm simulator.

(5) What data in (4) are accessible by law enforcement officers.

(6) All means by which the Hailstorm simulator was configured to minimize data collection from third party cellular devices not belonging to Andrews.

We’ll see what the Baltimore PD chooses to do on remand. That’s a lot of info it’s not in any hurry to share with the general public. It may be able to keep some of this out of the public hand’s with sealed filings but it can’t keep all of this buried. It may decide it’s time to settle. I hope it doesn’t. This info should have been made public years ago. The PD spent years hiding this from everyone. It’s time to open the books.

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Comments on “Appeals Court Tells Baltimore PD To Start Coughing Up Information About Its Cell Site Simulators”

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14 Comments
That One Guy (profile) says:

Re: Re:

That or some form of ‘Terribly sorry, department record keeping rules means those documents were destroyed as no longer necessary to keep in order to save storage space.’

If they are willing to drop cases rather than even admit to using stringray tech then the odds are likely pretty low that they will just start handing out detailed information about what the tech does just because a court told them to.

George says:

Re: Re: Re:

A lot of this information came out with the initial discovery of these devices a couple of years ago, California case, tax return theft/fraud as I recall. The truly disgusting/ironic/sardonically funny thing is, the manufacturers of these devices knew full well that they weren’t being disclosed, and took action to keep it that way. If memory serves, police agencies who purchased these devices (at a HORRIFIC markup compared to what they cost to build I may add) were forced to sign essentially beefed up NDA’s that stated that they would actively conceal the existence of these devices, though my memory is spotty these days, living in Colorado and all. Side note, I was privy to these devices back in 2007 when a friend of mine from a police force I won’t mention came by my house with a “rape van” full of tech to show off the capabilities of this stuff. I watched an entire neighborhood’s calls, texts, and every other means of communication via cellular device scroll across multiple screens as I crouched in the back of this van in complete shock, disgust, and fear.

intrusion alert says:

idealistic numnuts

The police have turned to illegal means since the kids of the baby boomers have taken over the reins. It shows the sloppy stupid way they were brought up by idiots that were taught also by idiots. Boomers are idiots. The broom needs to sweep away these idiots from any and all offices. New people who have not every learnt the ways of these idiots need to take over and do the public service required not the way of these narcisists.

ROGS says:

Re: idealistic numnuts

Cops have always been doing heinous, illegal shit.

But the boomers legitimized it in ways that others had not, which led them to the exact types of fasicm and racism their their former nemesis of "white supremacists" had always used.

Chiefly, they weaponized race in new ways, and activated the public sector unions and scurrilous NGOs as racial and sectarian gangs, rather than as the united front of the KKK.

Anonymous Coward says:

Turn about

Since the Baltimore PD has no problem using these things, let us give their insurance company one as well, that way they can verify that there is no fraud going on with timesheets and accident claims. I’m sure they will have no problem with active investigations replacing warrants and other things in place to prevent unwanted intrusions into their lives.

That One Guy (profile) says:

Re: Re:

That question has been raised a few times in the past and I think the answer has usually been that the other side doesn’t have to accept a settlement offer, but not doing so is generally not looked on very well by judges since they just want to move on to the next case and don’t look kindly on people ‘clogging up’ the courts like that.

Upstream (profile) says:

Re: Re:

A lot of the problems with police subverting the law have always been there, but were just never believed by “anyone who mattered.” Another huge chunk of the problems can be traced directly to Nixon’s “War on Drugs,” which was really just a way to attack his political enemies and other “undesirables.” The problems with police subverting the law again ramped up in the late 80’s and early 90’s as the “crack cocaine epidemic” became the excuse du jour. It is really only since the widespread use of cellphone video cameras that anyone beyond the victims of the police (and their defense attorneys) has begun to accept that such a problem even exists. And, in spite of vast quantities of overwhelming and incontrovertible video evidence, most courts and most of the public still refuse to accept that the police ever subvert the law.

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