New Mexico Legislators Looking To Add Warrants To The Stingray Mix, Curb Electronic Surveillance

from the start-papering-that-evidentiary-trail,-boys dept

The New Mexico legislature, which passed the most restrictive asset forfeiture reform bill in the nation, is once again targeting easily-abusable tools of the law enforcement trade. The Tenth Amendment Center reports that the proposed bill targets police use of Stingray devices, as well as other electronic data demands.

The bill would require police to obtain a warrant or wiretap order before deploying a stingray device, unless they have the explicit permission of the owner or authorized possessor of the device, or if the device is lost or stolen. SB61 does provide an exception to the warrant requirement for emergency situations. Even then, police must apply for a warrant within 3 days and destroy any information obtained if the court denies the application.

SB61 would also bar law enforcement agencies from compelling a service provider or any person other than the owner of the device without a warrant or wiretap order. This would include actual communication content such as phone conversations, text messages and email, location information and other metadata such as IP addresses pertaining to a person or device participating in the communication.

The bill does contain a few warrantless exceptions, but they're the expected exceptions (consensual searches, exigent circumstances) and they're limited to those two. Otherwise, deployment of a Stingray device requires a warrant or wiretap order. Law enforcement agencies will no longer be able to hide Stingray use behind pen register orders or wander into providers' offices without any paperwork and ask for historical cell site location info.

The bill also requires that any collected information be destroyed within ninety days. Information unrelated to the device targeted must be destroyed within thirty days. Any extended retention must be approved by a judge after the agency has shown cause for the additional storage and use of collected information.

Additionally, restrictions are placed on the sharing of collected information, limiting access only to those who will comply with the boundaries contained in the court order authorizing the collection. These entities will be subject to the same data destruction periods.

Stingray warrants will also receive additional judicial scrutiny. From the bill:

When issuing a warrant or order for electronic information or upon a petition of the target or recipient of the warrant or order, a court may appoint a special master charged with ensuring that only the information necessary to achieve the objective of the warrant or order is produced or accessed.

Emergency warrant exceptions won't be easy to obtain either. And, even if an exception is obtained, the law enforcement agency is required to notify the target within three days of the information's collection -- whether via a Stingray device or directly from the service provider. Law enforcement will be able to delay notification but this requires running more paperwork past a judge and convincing them that the delayed disclosure is essential to an ongoing investigation. All extension requests -- granted or denied -- will be publicly reported by the Attorney General's office on its website.

The bill also provides for a great deal of mandatory reporting on demands for information sought under the new law. This includes the number of times requests were made, the type of request, and the data/information sought. It applies to all government agencies.There's no wording contained in it that suggests this bill is solely limited to local law enforcement. That means the federal government would have to play by the same rules when deploying Stingrays or demanding information from local service providers -- something that could possibly see the feds intervening if the bill lands on the governor's desk.

The following is only part of the info list contained in the bill -- all of which must be reported to the state's Attorney General. There's a lot in there no agency is going to be in any hurry to hand over.

(b) the number of persons whose information was sought or obtained;

(c) the number of instances in which information sought or obtained did not specify a target natural person;

(d) for demands or requests issued upon a service provider, the number of those demands or requests that were fully complied with, partially complied with and refused;

(e) the number of times notice to targeted persons was delayed and the average length of the delay;

(f) the number of times records were shared with other government entities or any department or agency of the federal government and the government entity, department or agency names with which the records were shared;

(g) for location information, the average period for which location information was obtained or received; and

(h) the number of times electronic information obtained under the Electronic Communications Privacy Act led to a conviction and the number of instances in which electronic information was sought or obtained that were relevant to the criminal proceedings leading to those convictions.

If this passes, New Mexico will be leading the nation in protections of its constitutents' property and civil liberties. Expect lots of resistance as this makes its way through the legislature. And if it does become law, expect the Albuquerque PD to continue doing whatever the hell it wants to.


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