It’s 3 a.m. Do you know what your cell phone is doing?
With the advent of stingray technology, it just might be reporting your location to government officials. Or it might be transmitting data to the authorities. Your phone may even be acting as a microphone, allowing local police to listen in on you in the privacy of your own home.
A cell-site simulator, commonly known as a stingray, is an electronic device that is used by police primarily to locate cell phones. The device works by mimicking cell towers, tricking cell phones in the area into “pinging” the device rather than a cell tower. According to a motion filed in federal court by defense attorney Martha Boersch, a stingray can also “intercept content transmitted from phones within its range” and “force a phone to act as a microphone, essentially converting the phone to a wiretap.”
Boersch represents Purvis Lamar Ellis, an Oakland man charged with attempted murder of a police officer in 2013. On the night in question, Oakland Police Department officials and the FBI used stingray technology to locate him. Three years later, Ellis has not gone to trial, and Boersch has found herself mired in a heated dispute with the federal government over the use of the controversial technology.
Cell-site simulators such as the stingray raise constitutional concerns when they are used. This is because, according to Boersch, the simulators use signals that “penetrate walls and physical barriers that protect homes, offices, and other private places.” In addition, simulators do not discriminate; they force “all wireless devices within range to communicate … whether those devices are targeted or not.” This amounts to a government search, which require a warrant under the Fourth Amendment.
In Ellis’ case, no warrant was obtained prior to employing the technology. Instead, Oakland Police and the FBI requested that local phone companies use a “pen register” to track Ellis’ phone. But these requests made no mention of a cell-site simulator, and no judge approved the use of one.
According to Boersch, the pen register application was largely academic in any case. A stingray has nothing to do with a phone company or its data.
“The stingray operates completely independently of the phone company,” said Boersch. “You do not need a pen register to operate a stingray. No phone company has to turn anything on.”
Federal and state authorities have been notoriously tight-lipped about how cell-site simulators work and what data they collect. In some instances, they have gone so far as to dismiss cases rather than turn over information on the technology. In Ellis’ case, the government initially seemed unaware of how stingrays work and definitively assured the court that only one stingray was used. After months of litigation, the government admitted that two were used but insisted that they did not need a warrant and that no data were collected.
Boersch is not convinced, and the government has not yet complied with discovery requests on this question. Even if no data were collected, however, Boersch insists that the use of a stingray requires a warrant.
“What the stingrays do at the very least [is provide] real-time contemporaneous information about who is calling who,” argued Boersch in a recent court hearing. “That is information that I would think any one of us would have a reasonable expectation of privacy about. We believe those stingrays captured much more than just dialing information. For that reason we think it was clearly a search and subject to the warrant requirement.”
Former federal prosecutor Stephanie Pell told Ars Technica that putting the capabilities of a stingray into police hands without any check on how it is used requires blind faith, the kind that many would not be comfortable giving the government.
“This kind of surveillance is something that we truly have to trust the government to do what they say they’re doing,” said Pell. “I’m not terribly comfortable with that, not because I think prosecutors and cops are bad people, but you have to have some kind of oversight structure built in.”
Some legislators are unwilling to stand by and hope that law enforcement officials employ new technology legally. California Congressman Darrell Issa recently added language to an appropriations bill that would bar the use of funds “to operate or disseminate a cell-site simulator or IMSI catcher (stingray) in the United States except pursuant to a court order that identifies an individual, account, address, or personal device.”
“As you know, law enforcement does not get a pass inherently on constitutional limitations,” said Issa. “And yet if you and I put [a stingray] on a small drone, we would have the FCC and the FBI arresting us.”
Sources: https://arstechnica.com, www.documentcloud.org
Originally published in Criminal Legal News on January 19, 2018.