Tenth Amendment Center: Activists in Connecticut Pushing to Improve Bill to Prohibit Warrantless Stingray Spying
HARTFORD, Conn. (May 30, 2017) – Activists in Connecticut are working to improve a bill to limit the use of “stingrays.” If amended and passed, the proposed law would not only protect privacy in Connecticut, but would also hinder one aspect of the federal surveillance state.
The House Judiciary Committee introduced House Bill 7291 (HB7291) in March. The legislation would require a judicial order for the use of a cell site simulator device to obtain geo-location tracking information in most situations.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.
The proposed law would allow for the use of a stingray to obtain geo-location data without a judicial order for no longer than 48 hours if the information is relevant to an ongoing criminal investigation and if exigent circumstances exist.
The House passed HB7291 by 144-0 on May 17.
As at stands, the bill has two glaring weaknesses.
- It only prohibits stingray use for geo-tracking. It does not address using a cell site simulator to gather communications data. Language in the bill currently could be taken to allow police to use a stingray to listen in on phone conversations or access text messages without judicial oversight.
- HB7291 does not require an actual warrant. Police could use a cell site simulator with a judicial order based only on an officer’s sworn statement. The order would be “shall issue” meaning the judge would have no authority to scrutinize and reject the officer’s petition. He would have to issue the order simply based on the existence of the sworn statement.
Due to these issues, privacy activists including the Connecticut ACLU are pushing for the following amended language to remedy the bill’s weaknesses.
The judge may grant any order sought pursuant to subsection (b) (3) (authorize use of a surveillance device to obtain, the content of a subscriber’s or customer’s communications or geo-location data associated with a subscriber’s or customer’s call-identifying information) upon finding probable cause to believe that a crime has been or is being committed and that the content of such subscriber’s or customer’s communications or the geo-location data associated with such subscriber’s or customer’s call-identifying information is relevant and material to an ongoing criminal investigation. Any such order entered pursuant to this subsection shall state upon its face the case number assigned to such investigation, the date and time of issuance and the name of the judge authorizing the order.
With these changes, HB7291 would be a strong piece of legislation limiting the use of stingrays. Otherwise, it could open the door to even more intrusive warrantless stingray use.
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 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 data bases.
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. Amending and passing HB7291 would represent a major blow to the surveillance state and a win for privacy.
WHAT’S NEXT
The bill has moved over to the Senate. It will need to be amended before a full Senate vote. If you live in Connecticut, contact your state senator and urge him or her to support an amendment version of HB7201. You can find contact information HERE.
Mike Maharrey
May 30, 2017 at 10:41AM
