Police Are Keeping Mum About Their Cell-Tracking Technology

POSTED BY Edwin Batista

Police have been using a device called Stingray to intercept phone calls and text messages to aid in their police work. However, privacy issues have been raised due to police refusing to elaborate on the details of their surveillance operation. Little is known about how police use Stingray and the rules they follow when using it even in states with strong open record laws. Efforts to obtain public-records regarding Police use of Stingray have been mostly fruitless.

At about the size of a suitcase, Stingray works by tricking cellphones in its range of operation into identifying themselves and transmitting their data to police rather than the nearest cellphone tower. It is not clear what information Stingray is capable of capturing because documents regarding Stingrays are usually heavily censored. In rare court appearance in 2011, the FBI confirmed that Stingray has the potential to affect innocent users in its area of operation.

Earlier this month the American Civil Liberties Union of Arizona, through one of its journalist, sued the Tucson Police Department, alleging that police had not complied with the State’s public-records law because police did not fully disclose Stingray records.

Awareness of police cell-tracking capabilities through their use of Stingray has spread across the country. News agencies in California, Florida and Philadelphia have been denied police records on Stingray. Attempts to obtain this information have been met with denials and challenges to such request in court. The main issue here is that there is an exception in public-records law that protects trade Secrets. It is through these trade secrets exception and nondisclosure agreements that Police have been able to decline to tell the courts about the use of Stingray.

The recent revelations about the surveillance programs run by the NSA has started a debate regarding the balance between citizen’s privacy and government surveillance policies. The issue of the lack of information on police use of Stingray will not go away and will likely intensify and spread across the country. The fact that police can avoid complying with public-records request by contracting with private companies with trade secrets and nondisclosure agreements must be addressed. In order to maintain our civil liberties and eliminate abuses public agencies need to be more transparent. A balance must be struck between allowing police to use technology to effectively do their job and allowing citizens the ability to make sure police are not abusing their power.

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Recent Supreme Judicial Court Ruling a Victory for Privacy Advocates

POSTED BY Micah-Shalom Kesselman

Complementing an article written by one of our very own in our most recent published issue, the Supreme Judicial Court of Massachusetts recently ruled on the issue of whether a warrant is needed to obtain cellular site location information (CSLI) from a third party under the state constitution. The lower courts had held that the state was required to obtain a warrant to access Shabazz Augustine’s CSLI, regardless if it retrieved the information under Federal law. The highest court in Massachusetts took the case on appeal and listened to arguments from both the state and Augstine, represented by the American Civil Liberties Union of Massachusetts, as well as receiving numerous amicus briefs from organizations such as the Electronic Frontier Foundation.

The SJC held that “the government-compelled production of the [Augstine’s] CSLI records by Sprint constituted a search in the constitutional sense to which the warrant requirement of art. 14 applied.” Before anyone celebrates this as a victory for privacy rights, it should be noted that the court explicitly refrained from wading into a Fourth Amendment analysis and decided the issue strictly along the contours of Article 14 of the Massachusetts Constitution. In its opinion, the SJC observed that “a majority of [Federal] courts [have] ruled that an individual has no reasonable expectation of privacy in the CSLI because it is a third-party business record.”

This is certainly a major and important victory for privacy advocates in Massachusetts. There are still major issues to be resolved. As the SJC itself explained, though the Circuits generally fall on the side of third-party CSLI being accessible without a warrant, there is still a split. The nature of federal law enforcement also makes it more likely that such investigative practices will be useful as compared to state law enforcement. Furthermore, the familiar issues of tracking via digital footsteps are still kicking about. So, though a privacy victory, let’s keep a practical sensibility and keep in mind the long haul still to go.