From Tenth Amendment Center
AUSTIN, Texas (Nov. 23, 2018) – Two bills prefiled in the Texas House for the 2019 legislative session would ban warrantless location tracking and the use of stingray devices to sweep up electronic communications in most situations. The proposed laws would not only protect privacy in Texas, but would also hinder one aspect of the federal surveillance state.
Rep. Cesar Blanco (D-El Paso) prefiled House Bill 352 (HB352) on Nov. 15. The legislation would 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.
HB353 would require police to get a search warrant before deploying a stingray with only a few exceptions. Under the proposed law, police could use a cell site simulator without a warrant if the owner or possessor reports the target device stolen, or if there exists an immediate life-threatening situation. In that case, police would have to apply for a warrant “as soon as practicable.” If the judge finds no life-threatening situation existed, any information obtained by the cell site simulator would be inadmissible in court.
HB352 also features a provision that would prohibit state and local police from obtaining or using cell site information to assist with, participate in, provide material support or resources for, or enable or facilitate an investigation conducted by a law enforcement agency of the federal government or of another state without a warrant in most cases. This would also bar local police from using cell site simulator information collected by federal agencies in their investigations without a warrant, and block the sharing of warrantless data between state and federal agencies.
Under the proposed legislation, law enforcement agencies would be required to implement a written policy for deleting any data collected from devices not specified in the warrant.
Blanco also prefiled House Bill 353 (HB353) at the same time. Under this proposed law, police would have to get a warrant before obtaining location data from a cell phone provider.
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. The provision in HB352 barring police from “obtaining” warrantless stingray data would also prevent local police from tapping into warrantless information gathered by federal agencies like the FBI and NSA.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of HB352 and 353 would strike a major blow to the surveillance state and would be a win for privacy.
WHAT’S NEXT
HB352 and HB353 will be officially introduced when the 2019 regular session begins on Jan. 8. It will receive a committee assignment at that time.
Mike Maharrey
November 23, 2018 at 06:40AM
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