from the court:-a-pen-register-order-is-not-even-close-to-the-same-thing dept
The Maryland Special Appeals Court isn't buying government lawyers' arguments that warrantless deployment of Stingray devices has no 4th Amendment implications. The government had argued that "everyone knows" phones generate location data when turned on and this information is "shared with the rest of the world" (but most importantly with law enforcement).
The court has yet to release its written opinion, but it did issue a one-page order upholding the lower court's suppression of evidence related to law enforcement's use of a Stingray. This ruling is especially important in Maryland, where Baltimore police have used the devices hundreds of times a year without seeking warrants or notifying judges and defendants about the origins of evidence.
The ruling has the potential to set a strong precedent about warrantless location tracking. “Police should now be on notice,” said Nate Wessler, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Accurately explain your surveillance activities to a judge and get a warrant, or risk your evidence being thrown out.”As has been noted here, the Baltimore police use pen register orders to deploy Stingrays, allowing it obscure the usage of the devices as well as to avail itself of lower evidentiary demands. This won't be the case going forward. The court has (at least orally) expressed its displeasure with the Baltimore PD's deceptive tactics.
During the oral argument before the appeals court in February, one of the judges called the police’s pen register application a “completely false document,” and “completely disingenuous.”As The Intercept notes, this is the first time a US court has suppressed evidence gathered with warrantless Stingray deployments. More will probably follow -- not because the Maryland Special Appeals Court decision will affect courts in other states -- but because more and more information on these devices and how law enforcement deploys them is coming to light.
The government tends to rely on the Third Party Doctrine. While courts may consider the connection and data collected by Stingrays to fall under this doctrine, they're far less likely to find law enforcement's secrecy and deception acceptable. On top of that, using a cell tower spoofer for real-time tracking isn't like deploying a pen register at all, even if judges find the lower evidentiary standard acceptable.
Pen register orders historically involved static phones. The location of the suspect was already known. All law enforcement was looking for was data on incoming and outgoing calls from certain numbers. With Stingrays, law enforcement is trying to find a suspect, not whoever that person is calling (even though that information will be gathered as well). And in order to do so, it has to place itself between hundreds or thousands of non-suspects and the receiving parties of their phone calls and messages. This location tracking and collection of non-relevant data needs to be held to a higher standard, and this decision from Maryland may finally be the start of that.