Tenth Amendment Center: Oklahoma Bill Would Ban Warrantless Stingray Spying, Hinder Federal Surveillance

From Tenth Amendment Center

...from Tenth Amendment Center

OKLAHOMA CITY, Okla. (Jan. 30, 2018) – A bill prefiled in the Oklahoma Senate would ban the warrantless collection of electronic data and the use of “stingrays” to track the location of phones and sweep up electronic communications in most situations. Passage of the bill would not only protect privacy in the Sooner State, it would also hinder one aspect of the federal surveillance state.

Sen. Nathan Dahm (R-Broken Arrow) prefiled Senate Bill 1274 (SB1274). The legislation would prohibit law enforcement agencies from obtaining the metadata, stored data or
transmitted data of an electronic device without a search warrant issued by a court upon probable cause. Under the proposed law, police would have to get a warrant before obtaining electronic data from service providers. It would also help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

HB1274 would allow warrantless electronic data collection with the informed and affirmative consent of the owner or user of the electronic device, and in accordance with judicially recognized exceptions to the warrant requirement.

Under the proposed law, any data collected on persons not named in the warrant would have to be destroyed within 24 hours, and could not be used, copied or disclosed for any purpose.

At the time of a report in May 2016, at least two Oklahoma law enforcement agencies had acquired or used devices to track and collect information from cellphones. That number is likely higher since these devices are often obtained and used in secret.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.

The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of SB1274 would strike a major blow to the surveillance state and would be a win for privacy.

WHAT’S NEXT

SB1274 will be officially introduced on Feb. 5. It will then be referred to a committee where it will need to pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
January 30, 2018 at 12:48PM