New Law In Illinois Restricts Stingray Use, Requires Court Orders For Deployment

from the the-warrant-that-dare-not-speak-its-name dept

Roughly eight years after information about law enforcement use of Stingray devices began slowly making its way into the public sphere, positive changes are being made. While the government has often argued it can be the "Third Party" in "Third Party Doctrine" by inserting itself warrantlessly between people's cell phones and their carriers' towers, its assertions are being met with increased judicial skepticism.

Two judges -- one state, one federal -- have reached the same conclusion in recent months: using a cell tower spoofer to locate suspects by dragging information out of their phones is a search under the Fourth Amendment. Warrants are required.

A few state legislatures have gotten into the act as well, proposing laws that create a warrant requirement for Stingray deployment. Illinois is the latest to do so (and the law actually passed), creating a new set of guidelines for law enforcement Stingray device use, including limits on data retention. It doesn't go quite so far as to mandate warrant acquisition, but it does force law enforcement to specify the equipment used in their applications, which also serves to create a paper trail that can be examined by defendants and members of the public.

This is the new quasi-warrant requirement recently signed off on by the governor.

Provides that an application for a court order to use a cell site simulator device, including an emergency application under the Freedom From Location Surveillance Act, must include a description of the nature and capabilities of the cell site simulator device to be used and the manner and method of its deployment, including whether the cell site simulator device will obtain data from non-target communications devices. Provides that an application for a court order to use a cell site simulator device, including an emergency application under the Freedom From Location Surveillance Act, must also include a description of the procedures that will be followed to protect the privacy of non-targets of the investigation, including the immediate deletion of data obtained from non-target communications devices.

The presentation of probable cause basically makes it a warrant requirement, even if the word "warrant" appears nowhere in the legislation.

The other positive here is that very strict controls on the use and retention of non-hit data are being instituted as well.

Provides that if the cell site simulator device is used to locate or track a known communications device, all non-target data must be deleted as soon as reasonably practicable, but no later than once every 24 hours. Provides that if the cell site simulator device is used to identify an unknown communications device, all non-target data must be deleted as soon as reasonably practicable, but no later than within 72 hours of the time that the unknown communications device is identified, absent a court order preserving the non-target data and directing that it be filed under seal with the court.

An additional nice touch is that requests and orders aren't considered "sealed" by default and that any seal request granted only lasts six months, and extension requests must be accompanied by a certification indicating the documents are part of an ongoing investigation or a "showing of exceptional circumstances." The last one is a little worrying as it could be used to maintain seals indefinitely if the court is inclined to believe law enforcement claims about "exposing law enforcement means/methods."

This show of "support" from local law enforcement indicates the law isn't as far-reaching as privacy activists might have hoped, but it isn't exactly just a bundle of concessions to LEO interests either.

The Illinois State Police has taken a neutral position on the law and the Chicago Police Department did not take a position.

Expect this trend to continue. More courts and legislators are going to realize that tracking a person's location by forcing their cell phone to connect with law enforcement technology is in no way analogous to gathering phone records with a pen register order or subpoenaing historical cell site data from third-party carriers.

Filed Under: 4th amendment, court orders, illinois, imsi catcher, stingray, third party doctrine, warrants


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  • identicon
    Kellin7, 29 Jul 2016 @ 1:17am

    So for 8 years ... virtually all U.S. judges, legislators and law enforcement officers involved have ignored the 4th Amendment law relative to Stingray.

    This betrays the fundamental corruption in our legal system.
    (Stingray itself is just a minor symptom of a systemic problem... and trivial relative to NSA illegalities)

    Of course, no punishment whatsoever will befall the thousands of government officials who criminally performed/supported illegal Stingray searches.

    Legislators now "proposing laws that create a warrant requirement for Stingray deployment" is total farce. The 4th Amendment and supporting laws have been in force for over two centuries... laws are useless to the citizenry, unless justly conceived and applied.
    More Laws = More Bull$hit in today's world.

    reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 29 Jul 2016 @ 6:44am

      Re:

      I'm half-way tempted to give the cops, et al., a pass on this one. Half-way.

      From where I sit, it looks like stingray devices started coming into use without any public discussion about when and how they should or should not be used. Whether that was serendipity on the cops' part, or whether it was intentional is well and truly beyond my ability to even speculate. (And here is why I'm half tempted to give the cops a pass - I might consider allowing serendipity as an excuse for how they did what they did.)

      What I can say with some certainty is that, the cops have worked very, very hard to keep the existence and abilities of these things under wraps for as long as possible. And if that meant perjury, or most carefully excluding certain key facts from warrant applications, or dropping cases where the defense got too close to the heart of the matter, then so be it. They wanted to keep their toys and play with them without any (adult) supervision.

      Now that they're known to exist, and something about what they do, there's beginning to be a public discussion about how and when they should be used. (I hope it's obvious that I am of the opinion that that conversation should have been had before they went into use.) And now that the discussion is under way, consensus is rapidly coalescing in favor of at least limited compliance the fourth amendment in the use of the things.

      As for lack of consequences, well, there's that pesky bit about ex post facto laws in the Constitution.

      Legislation requiring warrants for use of stingrays may be a day late and a dollar short, but at least they're a (small) step in the right direction.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 29 Jul 2016 @ 9:33am

      Re:

      The 4th Amendment and supporting laws have been in force for over two centuries

      That. They couldn't care less about the Constitution, why would they care about some lousy state law?

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 1 Aug 2016 @ 7:08am

      Re:

      It goes well beyond that. You know those wiretap laws that police love to arrest videographers for violating? Given how a Stingray works, use of one violates those as well as the Computer Fraud and Abuse Act (since a smartphone is also a portable computer).

      Those laws ALREADY require a warrant, but for some reason NO ONE in authority has been holding police accountable for all of those felonies.

      We don't need a new law requiring a warrant for Stingrays, we just need prosecutors to enforce the dozens of laws we already have that make use of a Stingray a crime.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 1 Aug 2016 @ 10:29am

        Two Words (which have surfaced here on TD before)

        Prosecutorial Discretion.

        It's that magic thing that allows police or high ranking officials to get away with murder.

        ..Or arson. Or voter fraud. Or abuse of power.

        ...or CFAA violations.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2016 @ 2:59am

    Legislative Malarkey

    "...the word 'warrant' appears nowhere in the legislation..." and "...orders aren't considered 'sealed' by default..." but can be extended indefinitely.

    Yeah, the cops'll only be able to herd small elephants thru those loopholes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2016 @ 8:23am

    These devices violate FCC regulations - I don't understand what the FCC has not stepped in to put an end to there use.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 29 Jul 2016 @ 9:16am

    What happens when cops are caught using stingrays without warrants anyways?

    I honestly don't expect them to follow this rule considering past behaviour.

    will it be the normal wrist slap or actual consequences for breaking this and continuing illegal use of stingrays.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 29 Jul 2016 @ 10:25am

    The meta.

    I'd like to see this bring into discussion the a regulation of technologies that Law Enforcement are allowed to deploy in their line of work.

    Given that detection tools are being used to incriminate but not vindicate, we've already established that they're not being used in service of the people, ergo they should be restricted to a limited set and the limits of their ability to detect made public and open.

    When our officials that direct the operations of law enforcement and the Department of Justice are able to return the function of their agencies back to service of the people, respecting the rights of the individual, their selection of acceptable devices can be expanded once again.

    Yes, this means that criminals will be able to better cover their tracks, but considering the police are hunting down the lower-hanging fruit of helpless bystanders, undetected crime likely continues to flourish anyway.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2016 @ 10:58am

    So you say we need to get a warrant?

    Oh yeah? Who's gonna make us?

    reply to this | link to this | view in chronology ]


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