LAPD Joins Feds In Skirting Fourth Amendment With Cell Phone Tracking Devices

from the rules-are-for-the-people-on-the-other-side-of-the-thin-blue-line dept

Thu, Sep 20th 2012 3:37pm — Tim Cushing

About this time last year, details emerged on a new cell phone tracking device being used by the FBI to triangulate suspects' locations via their cell phone signals. One of these, the StingRay, mimics mobile phone towers, allowing the feds to triangulate someone's position using signal strength. It had been used successfully to bring Daniel Rigmaiden, wanted for fraud, into custody.

Rigmaiden (who is representing himself) was curious as to how he was located and a question on due process was posed by the judge:

In a February hearing, according to a transcript, Judge Campbell asked the prosecutor, "Were there warrants obtained in connection with the use of this device?"

The prosecutor, Frederick A. Battista, said the government obtained a "court order that satisfied [the] language" in the federal law on warrants. The judge then asked how an order or warrant could have been obtained without telling the judge what technology was being used. Mr. Battista said: "It was a standard practice, your honor."

Judge Campbell responded that it "can be litigated whether those orders were appropriate."

The FBI believes it can (and apparently, still does) track people using these devices without securing a warrant. Most discussion of the devices has been shut down by stating that revealing too much information would "harm law enforcement efforts by compromising future use of the equipment." The feds also believe that since the device only detects location, rather than eavesdropping, it's all cool, 4th Amendment rights or no.

So, while the jury is almost literally still out on the constitutionality of these devices, local law enforcement members have been availing themselves of them. LA Weekly, using recently obtained FOIA documents, discovered that the Los Angeles Police Department (along with police in Miami, Ft. Worth and Gilbert, AZ) has obtained and deployed the questionable StingRay. Not that the LAPD has much to say about its use, however:

LAPD refuses to discuss how it uses the powerful tool, perhaps copying the FBI's playbook, which argued in the Rigmaiden case that revealing too many details would cause serious harm to future investigations.

The department, through a spokesperson, refused to comment on the device, despite repeated requests from the Weekly. Through the department's Discovery Unit, which handles requests from the public and media under the California Public Records Act, LAPD also declined to reveal any information on how the devices are used.

LAPD even refuses to say whether its detectives are required by police chief Charlie Beckand the Los Angeles Police Commission — all of whom are appointed by Mayor Antonio Villaraigosa — to obtain a search warrant before the StingRay is deployed against unsuspecting L.A. residents' cellphones.

Chances are the LAPD is deploying the devices without obtaining warrants, what with the FBI having set the precedent. With no court decision having been handed down yet dealing specifically with cell phone location trackers, law enforcement officers are pretty much free to explore the limits of this gray area. Refusing to discuss any details is par for the course for most enforcement agencies when asked about questionable means and technology, most of whom cite "serious harm" or "compromised investigations" as the reason for their obfuscation.

Speaking of dubious catch-all phrases, guess which one of the all-time "greats" was used to justify the purchase of these cell phone tracking systems:

Documents obtained from the Inspector General's office of the Department of Homeland Security reveal that LAPD bought two so-called "IMSI catchers" around 2006. At the time, LAPD had "recently purchased a cellphone tracking system (CPTS) for regional, terrorist-related investigations." The records mention StingRay and KingFish, brand names for IMSI devices made by Florida's Harris Corp.

Oh, yes. "Terrorism." Citing this vague threat in the law enforcement arena tends to open wallets and close minds with incredible efficiency. But the LAPD's acquisition of the cell phone trackers went one step further, and completely cut out any last vestige of public accountability.

Separate documents show that, in April 2010, the Los Angeles City Council approved the purchase of $347,050 in additional "StingRay II" equipment — and paid for it with outside funds from the Los Angeles Police Foundation, a nonprofit group that supports police functions, over which the city has no control.

The LAPD's refusal to discuss any aspect of these devices is "inconsistent with the democratic process," according to Peter Bibring of the ACLU, which makes sense, considering the use of the device itself seems to be "inconsistent with the democratic process." Seeing as the devices mimic cell phone towers, it would seem that the public might be very interested to know that the strongest signal in their neighborhood might actually be the LAPD doing a little tracking without a warrant or oversight.

Mobile devices connect to the wider network by using the antennae closest to them at the time. But when LAPD fires up a StingRay, it's often the most powerful signal in the area. Instantly, the department's spy equipment becomes the go-to "tower" for every cellphone and mobile device nearby — not just the phone carried by the suspect they're tracking.

"If the government shows up in your neighborhood, essentially every phone in the neighborhood is going to check in with the government," Soghoian warns. "It's almost like Marco Polo — the government tower says 'Marco,' and every cellphone in the area says 'Polo.' "

Maybe the feds and other smaller law enforcement agencies could just work to cut out the cell phone provider middleman and simply convert existing towers to "always-on" tracking devices. With enough subsidization, even those with the lowest income could avail themselves of 3G/4G service (depending on how many G-men are staffing the Flowers By Irene van), and the California Department of Corrections could up the ante by promising "More Bars in More Places."

Until a decision is handed down on the warrant question, it's safe to assume that law enforcement will be deploying these cell phone trackers as often as possible, using the "Beating Up on Crime/Terrorism" ends to justify the 4th Amendment-skirting means.

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Filed Under: fourth amendment, lapd, mobile phone tracking, privacy, stingray, warrants

38 Comments

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Chosen Reject (profile), 20 Sep 2012 @ 3:54pm

Until a decision is handed down on the warrant question, it's safe to assume that law enforcement will be deploying these cell phone trackers as often as possible
"Unless"? Don't you mean "Even if"?
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Chosen Reject (profile), 20 Sep 2012 @ 3:55pm

Re:
D'oh! I mean "Until". Man I screwed that one up.
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Anonymous Coward, 20 Sep 2012 @ 4:02pm

This is actually illegal for the LAPD to do, with no grey area. The Stingray is not FCC approved to operate in the GSM band at the strength it does; the feds can get around this by exempting themselves but state governments have no such luck. And yes, this actually was previously settled and isn't mere speculation.
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Capitalist Lion Tamer (profile), 20 Sep 2012 @ 4:02pm

Re:
That's probably more accurate. Or "until they find themselves on the receiving end of a pricey lawsuit..."
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Anonymous Coward, 20 Sep 2012 @ 4:18pm

Fourth Amendment? WHAT Fourth Amendment?
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Forest_GS (profile), 20 Sep 2012 @ 4:45pm

It's annoying that the word "Terrorist" can be used the same on people that want to kill, and people that want to change the law for the better.
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That One Guy (profile), 20 Sep 2012 @ 5:27pm

Re:
That's because you're still using the old definition of terrorist. The current, unofficial definition of 'terrorist' these days is simply 'Anyone who disagrees with, protests the actions of, or acts against an official government agency/branch/interest.'

The fact that that definition happens to include people who actually cause physical harm and/or death to people is just a side effect, rather than being the whole point as it used to be.
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Anonymous Coward, 20 Sep 2012 @ 5:29pm

Re:
A little off topic (not completely), but check out da link for some journalism

http://dailybail.com/home/must-see-gawker-asks-the-dnc-can-americans-trust-mitt-romney .html
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That One Guy (profile), 20 Sep 2012 @ 5:30pm

Re: Re:
Or until a hacker group uses their own tools against them, and starts tracking, and posting the location of, the people who are so happy to use/push these warrentless tracking systems.
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Anonymous Coward, 20 Sep 2012 @ 5:43pm

So I'm curious. As I understand it, the government essentially needs a warrant to violate the law.

And the government is asserting that it doesn't need a warrant because what it's doing isn't illegal.

So a private citizen could legally track the whereabouts of government officials, since it's not illegal to do so?

Oh, right, silly me.
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Anonymous Coward, 20 Sep 2012 @ 6:05pm

If you don't want to be tracked, don't put a device in your pocket that broadcasts your location 2 or 3 thousand times per day.

It's pretty simple.
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abc gum, 20 Sep 2012 @ 6:13pm

Re:
"the government is asserting that it doesn't need a warrant because what it's doing isn't illegal."

Not quite ... the gov claims they are free to break the law and have done so on numerous occasions.
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Anonymous Coward, 20 Sep 2012 @ 7:00pm

More bars
"California Department of Corrections could up the ante by promising "More Bars in More Places.""

As in 'behind bars'?
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Capitalist Lion Tamer (profile), 20 Sep 2012 @ 7:16pm

Re: More bars
Precisely.
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That One Guy (profile), 20 Sep 2012 @ 7:41pm

Re:
Really? That's the best 'argument' you can come up with to justify the police and government blatantly breaking the law and then refusing to even discus it? That?

Let me try a few...

If you don't want to be car-jacked, don't drive a car.

If you don't want to be mugged, don't leave your house.

If you don't want to be shocked by a malfunctioning electronic device, don't own or get near anything that uses electricity.

If you don't want to inhale any toxic or bad smelling odors, don't breathe.

...this is actually kinda fun, anyone else want to try a few?
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Joe R, 20 Sep 2012 @ 7:45pm

Messing with regular cell towers
"Seeing as the devices mimic cell phone towers, it would seem that the public might be very interested to know that the strongest signal in their neighborhood might actually be the LAPD doing a little tracking without a warrant or oversight."

If these devices can exceed the power output of regular cell phone towers, causing cell phones to attempt to connect to them, wouldn't that basically make all of those cell phones drop any ongoing phone calls and block any new calls until the StingRay signal moves and is no longer the strongest in the area? Do cell phones adapt swiftly to the lack of network connectivity from that "tower" and find the next best tower to connect to, or would the devices have some way to "tell" the phones that they should find signal elsewhere?
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LDoBe (profile), 20 Sep 2012 @ 7:52pm

Re: Re:
If you don't want to be crushed to death by a car on the sidewalk, don't walk on the sidewalk.

If you don't want your house to be set on fire by an arsonist, don't build a house.

If you don't want to be attacked by a pack of wild dogs, don't smell delicious.
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LDoBe (profile), 20 Sep 2012 @ 8:08pm

Re: Messing with regular cell towers
As far as I know, the Mobile protocols and standards attempt "graceful handoffs" where they connect to the new tower and verify network connectivity before handing off from the current tower. It works well if there are multiple towers to connect to, but wouldn't work if there's only two including the StingRay.

Logic would dictate that the phone wouldn't drop the call, but still attempt to connect to the StingRay, won't be able to establish or verify network connectivity, and just keep pinging the StingRay while using the next strongest signal.

I'm pretty sure that it won't be that situation though. I'm betting most phones would ping the StingRay. If the StingRay gives pretty much any response, the phones will start broadcasting to it, and drop the other tower's connection. There could also be the problem of the StingRay simply broadcasting on the same frequency as the nearest tower and act like a jammer, though I don't know if that would happen, since I'm not familiar with exactly how a SingRay works. If it broadcasts back to the phone it probably will cause huge problems with connection dropping. If it doesn't then the phones are going to run down their batteries shouting into the wind at a device that never answers.

This is entirely speculative, but I did get an AAS in IT and Networking, and had to take several classes on POTS and Cell networks. So I'm not an expert or anything, just faintly more knowledgeable on this subject, than I would have been fresh out of high school.
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HrilL, 20 Sep 2012 @ 8:32pm

FCC Should fine them
If you broadcast or disrupt signals on frequencies that you don't own you can be fined by the FCC. I wonder since the FBI and these police departments have said they are using these devices they should be getting fined.
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HrilL, 20 Sep 2012 @ 8:34pm

FCC Should fine them
If you broadcast or disrupt signals on frequencies that you don't own you can be fined by the FCC. I wonder since the FBI and these police departments have said they are using these devices they should be getting fined.
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That One Guy (profile), 20 Sep 2012 @ 9:08pm

Re: Re: Re:
The first two were good, but that last one was awesome.
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Anonymous Coward, 20 Sep 2012 @ 9:46pm

Re: Re: Re:
If you don't want to be subject to the American Government's over reach.. dont...live?
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Pixelation, 20 Sep 2012 @ 10:32pm

Just wondering
Could an app be created that allows your phone to exchange data with the phones of others to essentially have your location appear to bounce around?
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DataShade (profile), 20 Sep 2012 @ 10:38pm

Re: Re: Re:
What? That's crazy talk.

First, by "a hacker group" you obviously mean "terrorists."

Second, if someone starts exposing illegal covert surveillance, that's not a reason to stop illegal covert surveillance, that's a reason to increase surveillance to catch the terrorists who are trying to interfere with law enforcement.
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DataShade (profile), 20 Sep 2012 @ 10:44pm

Re:
Here's another easy one: if you don't want your criminal case to get thrown out, don't forget to obtain a warrant before you track your suspect by intercepting his digital communications.
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DataShade (profile), 20 Sep 2012 @ 10:55pm

Re: Just wondering
That sounds like it would require phone-to-phone connections bypassing the towers, which I don't think any commercial phones come designed to do; centralized providers who make money selling you text messages at the equivalent of $1,000 a megabyte don't want you bypassing their little walled gardens.

What you're describing would be a form of mesh networking. Mesh networking is a big thing that a lot of the Free Software Foundation and TORProject types have been working on for a while.
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DataShade (profile), 20 Sep 2012 @ 10:58pm

Re: FCC Should fine them
If we lived in a nation where the laws applied to the people who make them and the people who enforce them and the people who donate the money to keep those other two groups in control, then, yes, anyone who uses those devices without prior written authorization of the FCC would be fined, at least.

But in a nation where a bipartisan effort was made to exempt telcos from civil or criminal penalties for violating the law, that's very unlikely.
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Anonymous Coward, 21 Sep 2012 @ 1:31am

Re: Re:
If you don't want to be your point belittled on Techdirt, don't post.

Yeah, all that is needed is for RD and a few others to "report" my post too.

How nice.
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That One Guy (profile), 21 Sep 2012 @ 5:12am

Re: Re: Re:
May I refer you to the first line of my post, in particular the second sentence:

That's the best 'argument' you can come up with to justify the police and government blatantly breaking the law and then refusing to even discus it?

If you don't want your point 'belittled', it might help it your 'point' wasn't blaming the victims of the police and government breaking the law, and trying to make it out that it's their fault for trusting the people who are supposed to be upholding the laws, and who instead choose to ignore them.
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weneedhelp (profile), 21 Sep 2012 @ 7:33am

We the terrorists
https://www.youtube.com/watch?v=_ruTGEzS5iA
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Thomas (profile), 21 Sep 2012 @ 8:04am

It will not matter...
what the judges say regarding fourth amendment; the feds and cops will continue to go ahead and track people any way they can.

These days the feds and local cops don't give a rats tushie about the Constitution; they totally feel they are entitled to do whatever they think is necessary to find and prosecute anyone.

Himmler and Beria would be so proud of the feds and cops these days.
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weneedhelp (profile), 21 Sep 2012 @ 8:41am

Re: It will not matter...
[Sigh] Another case for the sad but true button.
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Anon, 21 Sep 2012 @ 8:50am

Re: Just wondering
Don't cell phone towers have a unique ID? If that is transmitted in the ping, can't the cell phone use an app which will map the "legit" towers in a given area. When it is pinged by a new "tower" in a familiar area, the cell drops the connection and warns the user that a new tower has appeared in the area?
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John Fenderson (profile), 21 Sep 2012 @ 9:00am

Re:
As I understand it, the government essentially needs a warrant to violate the law.

Not quite. The government needs a warrant in order to exercise special powers allowed by the law, not to break it. The concept is legal and blatantly Constitutional and, I would argue, actually necessary. The idea of getting the warrant is that there is oversight in the use of exceptional powers.

When the government wants to break the law, it just breaks the law. It doesn't bother with the courts.
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John Fenderson (profile), 21 Sep 2012 @ 9:03am

Re: Re: Just wondering
Yes, to all of the above. I have a very cool app on my phone that shows me all the towers it knows about, and can create a map showing their physical locations. It'd be pretty easy to notice a new tower that suddenly appears or that moves.
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slick8086, 21 Sep 2012 @ 9:42am

Hmmm...
So the feds used a fake tower and suspects phone connects to it. They don't intercept or eavesdrop on the data stream they just measurer the signal strength to get a physical location.

I'm not sure that this should be illegal. If we shift the spectrum a bit and talk about WiFi instead of cell phones, would we stil think this was wrong? The fact is cell phones are constantly broadcasting. The signal is encrypted, but it still exists.

Isn't that just like walking down the street yelling out secret code words? Nobody can tell what you are saying but they can tell that you are saying something and they can identify you as the person yelling.

If there is something else going on then of course that is something else, but if I understand this situation then I don't think this constitutes illegal search.
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robyeldon (profile), 18 Dec 2013 @ 7:23pm

Re: Re:
If you don't want gay marriages don't have one!
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three, 22 Mar 2014 @ 8:36am

Re: Re:
Yeah. I got one.

If you don't want to die, don't be born. :-)
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