Federal Court Says Warrants Are Needed For Stingray Deployment

from the little-more-Fourth-for-cellphone-users dept

A federal court in Oakland, California has come to a conclusion the DOJ definitely didn't want it to reach, as Cyrus Farivar reports for Ars Technica.

In the 39-page ruling, US District Judge Phyllis Hamilton notably found that the use of stingray to find a man named Purvis Ellis was a "search" under the Fourth Amendment—and therefore required a warrant.

The DOJ -- despite issuing its own guidance requiring warrants for Stingrays in 2015 -- argued in court earlier this year that no warrant was needed to deploy the Stingray to locate a shooting suspect. It actually recommended the court not reach a conclusion on the Fourth Amendment implications of Stingray use, as it had plenty of warrant exceptions at the ready -- mainly the "exigent circumstances" of locating a suspect wanted for a violent crime.

Unfortunately for the federal government (and all other law enforcement agencies located in the court's jurisdiction), the court declined the DOJ's offer to look the other way on Constitutional issues. It found a Stingray's impersonation of cell tower to obtain real-time location information is a search under the Fourth Amendment.

The court adopts Judge Koh’s reasoning in In re Application for Telephone Information, 119 F. Supp. 3d at 1026, to hold that cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable. While Judge Koh limited her analysis to the privacy interest in historical CSLI, the court determines that cell phone users have an even stronger privacy interest in real time location information associated with their cell phones, which act as a close proxy to one’s actual physical location because most cell phone users keep their phones on their person or within reach, as the Supreme Court recognized in Riley. In light of the persuasive authority of Lambis, and the reasoning of my learned colleagues on this court recognizing a privacy interest in historical cell site location information, the court holds that Ellis had a reasonable expectation of privacy in his real-time cell phone location, and that use of the Stingray devices to locate his cell phone amounted to a search requiring a warrant, absent an exception to the warrant requirement.

The court also has something to say about the FBI/Oakland PD's use of a pen register order as a stand-in for a warrant specifically detailing the type of device to used to obtain these so-called "phone records."

The government contends that since the Stingray devices used in this case were configured in compliance with the pen register statute, then the provisions of the pen register statute, including the “emergency” provisions, govern their operation. Doc. no. 321 at 9 (citing 18 U.S.C. § 3125). The government does not address the key issue in dispute, namely, whether the provisions of the pen register statute and the SCA provide the appropriate standard for using a CSS to locate a cell phone in real-time. The court follows Judge Illston’s determination in Cooper, 2015 WL 881578, that the provisions of the pen register statute and the SCA do not authorize the use of a CSS to disclose realtime information about a cell phone user’s physical location, and that such location monitoring must be authorized by a showing of probable cause.

It also points out the DOJ's reliance on the Stored Communications Act to salvage its warrantless Stingray use is misplaced -- something that could be gathered by the name of the statute.

[C]ongress intended that the SCA “was to be used as a means to obtain data which has already been stored at the time the government seeks to obtain it,” as opposed to real-time data.

Ultimately, though, the court denies the suppression of the evidence, allowing the government's "exigent circumstances" argument to prevail. This may prove to be a good thing in the long run (although it does little for the defendant). Allowing the government to keep its evidence gives it no reason to appeal the decision. And this decision implements a warrant requirement for obtaining real-time cell site location info and gives certain third-party records an expectation of privacy.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 31 Aug 2017 @ 4:50am

    Yay!

    Yesterday it was a story about a court in India issuing a good ruling on privacy, today it is the one in the US. Two good rulings in two days. Yay!

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

  • icon
    Advocate (profile), 31 Aug 2017 @ 5:55am

    If you "find" what you're looking for then you "searched" for it. It's sad that their English is good enough to write rules about that, but not good enough to read them.

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

  • icon
    Uriel-238 (profile), 31 Aug 2017 @ 6:24am

    The rule that I WANT them to reach...

    ...is _no new detection technologies -- not even a radar gun upgrade -- without prior judicial review of how the new device interacts with the fourth amendment.

    Because right now, we have DoJ lawyers combing over the ruling deciding where there might be weaknesses.

    Such as how to stretch exigent circumstances and good faith exceptions.

    No one yet has told me how good faith is proven or disproven. Do not all officers act in good faith all the time?

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

    • icon
      Uriel-238 (profile), 31 Aug 2017 @ 6:27am

      Re: The rule that I WANT them to reach...

      Because right now, we have DoJ lawyers combing over the ruling deciding where there might be weaknesses....

      ...which means we'll get to suffer years more of unreasonable searches as soon as they figure out how.

      (It's way too early in the morning and I'm not completing thoughts.)

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

      • identicon
        Anonymous Coward, 31 Aug 2017 @ 9:58am

        Re: Re: The rule that I WANT them to reach...

        Even probable cause is a weak standard for a dragnet like this. It's fine to use against the target, but a stingray is going to affect all cellphone users in the area.

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

  • identicon
    Anonymous Coward, 31 Aug 2017 @ 6:41am

    More warrants needed? Damn, MyNameHere's not going to be happy.

    I guess he'll just have to console himself with the likelihood that none of the surveillance staff who conveniently forget to file the warrants when deploying stingrays will be punished...

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

  • identicon
    bob, 31 Aug 2017 @ 8:45am

    did they really lose all that much capability?

    So how much time has to pass before real-time data moves to a non-warrant required state and a pen register is sufficient?

    It just seems that the speed with which information flows that law enforcement can get almost real time location data anyway and don't need to utilize a Sting Ray.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer
Anonymous number for texting and calling from Hushed. $25 lifetime membership, use code TECHDIRT25
Report this ad  |  Hide Techdirt ads
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.