Tenth Amendment Center: Missouri Committee Passes Bill to Ban Warrantless Stingray Spying; Help Hinder Federal Surveillance

From Tenth Amendment Center

...from Tenth Amendment Center

JEFFERSON CITY, Mo. (Feb 21, 2018) – Yesterday, a second Missouri House committee passed a bill that would ban the use of “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations. Passage of the law would not only protect privacy in Missouri, it will also hinder one aspect of the federal surveillance state.

Rep. Keith Frederick (R-Rolla) introduced House Bill 2104 (HB2104) on Jan. 11. The legislation would help block the use of cell site simulators, commonly 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.

HB2104 would require police to get a warrant based on probable cause before deploying a stingray device. Under the proposed law, police would be required to take all steps necessary to limit the collection of any data, metadata, communications, or other information to the target specified in the warrant. They would have to delete any such information collected from any party not specified in the warrant. Law enforcement would have to delete any data collected from the target within 30 days if there is no longer probable cause to support the belief that it is evidence of a crime.

On Tuesday, the House Rules Committee approved HB2104 by a 12-0 vote

The legislation does allow for exceptions to the warrant requirement — to find an electronic device reported stolen by the owner or user and during certain emergency situations that pose a substantial risk of serious injury or death. If a stingray is used under these exigent circumstances, police would still have to apply for a warrant as soon as practicable. If the judge denied the application, police would have to destroy all collected data. The bill also places limits on sharing of collected data.

Additionally, HB2104 would prohibit state and local police from using a stingray device to assist a federal agency without the permission of the owner of a device, or a warrant issued under the law.

Any evidence collected in violation of the law would be inadmissible in any state or federal trial, hearing or proceeding.

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 HB2104 would represent a major blow to the surveillance state and a win for privacy.

WHAT’S NEXT

HB2104 now moves to the House floor for a vote.

Mike Maharrey
February 21, 2018 at 12:49PM