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.