Warrants should be issued before use,
says human rights group
by Gregg MacDonald Staff writer
A bill that would prohibit police from
using currently utilized mobile devices to spy on residents’ cellphone usage
without first obtaining search warrants unanimously passed the Virginia House
of Delegates and is on its way toward becoming law.
HB 17 passed 99-0 on Feb. 11 and is
currently undergoing evaluation in the Virginia Senate’s Courts of Justice
Committee.
If passed into law, the bill would,
except under certain very narrow circumstances, prohibit the use of
International Mobile Subscriber Identity catchers by police agencies such as
the Fairfax County Police — who currently use them — without first obtaining a
search warrant.
The devices, called “StingRays,” are
manufactured by the Florida-based Harris Corporation, and are legally marketed
to military and law enforcement as ways of “triangulating” the position of a cellphone
user by mimicking a cellphone tower and tracking the location of that person’s
cellphone signals.
But according to human rights groups
such as the American Civil Liberties Union and the Electronic Privacy
Information Center, the devices are capable of doing much more, such as
intercepting phone calls and even text messages.
“That type of usage would be illegal,”
said Alan Butler of EPIC. “But nonetheless, the capability is there.”
And that makes use of the devices
without a search warrant a 4th Amendment issue, Butler says.
The Fourth Amendment precludes
unreasonable searches and seizures of property and effects without a warrant
defining a probable cause.
According to Fairfax County government
documents, the Fairfax County Police Department has been using the devices for
at least four years, but spokesperson Lucy Caldwell declined to comment on
exactly how police use them, saying only that “the FCPD does not comment on our
investigative tools, nor do we discuss investigative techniques or capabilities
… however, our detectives and officers follow all state and federal legal
requirements for the use of technologies that we do use.”
In a Fairfax County Board of
Supervisors agenda dated Sept. 28, 2010, police state that use of the device is
“used in conjunction with a court order, and the Fairfax County Police
Department has been sponsored to use this tracking device through the U.S.
Marshals Service.” In the same agenda, the department says it will use $126,661
of a federal grant to “enhance the StingRay cell phone tracking system,” which
is “capable of locating and tracking cellular service whether or not a phone is
transmitting. As long as the cellular phone is powered on, the StingRay is
capable of locating it.”
In addition to tracking cellphone use
for “crime victims, suspects of crimes, wanted persons, and those in need of
emergency services,” police also state in the agenda that the StingRay device
enhances “officer safety and allows the officers to stay in communication with
each other during covert operations.”
Butler says not all uses of the device
potentially conflict with the Fourth Amendment, but because the capability
exists, warrants should first be issued.
“I am not saying they should never be
used,” he said. “But at the same time, you should clearly be getting a warrant
first.”
HB 17 lists four circumstances in which
real-time location data could still be obtained by police without a warrant:
• To respond to a user’s call for
emergency service;
• With the “informed affirmative
consent” of the owner
• With the “informed affirmative
consent” of the owner’s legal guardian or next of kin; and
• If there is an emergency involving
danger to a person.
“It’s a powerful device and its use
should be regulated,” Butler said. “With it in the wrong hands, a phone system
can be hijacked without either the user or the phone company being aware.”
