Judge Allows FBI To Use Evidence Collected Via Stingray Fake Cell Towers

from the that-4th-amendment-thing... dept

Thu, May 9th 2013 3:59pm — Mike Masnick

For the past few years, we've been covering a key DOJ case against Daniel Rigmaiden. Rigmaiden appears to have been involved in some likely fraud, but after asking how the feds tracked him down, it was revealed that they used a fake mobile tower, often referred to as a "stingray" (though the actual product goes by a few different names), to create an effective man in the middle attack. This allowed the FBI to keep tabs on Rigmaiden's location and some of what he was doing, as the aircard he used to get online was suddenly running through their own special fake Verizon tower. In fact, it later came out that the DOJ has been misleading judges for years about its use of the technology.

However, a judge has now ruled that none of that really matters, and that the evidence collected by the stingray (or as a result of its use) can be used in the case against Rigmaiden. The reasoning is fairly odd, however. The judge basically said that there's no 4th Amendment issue because Rigmaiden had no reasonable expectation of privacy in either the use of the aircard or in his apartment "because he had obtained the air card and rented the apartment and storage space through fraudulent means — that is, using identifications that he had stolen from other people." That seems like a highly questionable standard on which to base that decision. As the ACLU points out, while Rigmaiden may have been committing fraud elsewhere, and may have used different names in getting the aircard and the space, there is no indication that any fraud was involved in getting those particular things. Under this ruling, you could see that doing something or buying something under an alias could be viewed as giving up one's 4th Amendment protections -- and that seems crazy.

The court also didn't seem to much care about the DOJ hiding its use of the stingray from judges:

The judge also ruled that the government was not in the wrong for failing to disclose to a magistrate judge that it planned to use a stingray to track the defendant, or to explain to the judge how the tracking device it intended to use worked. He characterized this information as a “detail of execution which need not be specified.”

That seems fairly troubling, as it would allow the DOJ to hide other surveillance efforts that might be judged to be 4th Amendment violations... As the ACLU notes in response to this ruling:

“When the government is seeking a warrant to use new technology, it has the duty to explain to the court what that technology is and how it works,” she said. “Stingrays are a very potent example of why that is so, because it scoops up innocent information of third parties who are not under probable cause surveillance.”

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: daniel rigmaiden, doj, fake mobile phone towers, fbi, fraud, man in the middle, stingray, surveillance, warrants

38 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 9 May 2013 @ 4:11pm

Can't the government just outsource their 4th amendment violations?
If a private company doesn't have to worry about the 4th amendment... can't the FBI/CIA hire private investigators through a bounty-hunter program and just obtain everything they want to know via 3rd parties?
[ link to this | view in thread ]
Anonymous Coward, 9 May 2013 @ 4:17pm

Re: Can't the government just outsource their 4th amendment violations?
Would make for an excellent campaign point for the Republicans: rights violations will happen regardless of the party in power, so elect a Republican President and you can at least ensure it'll be efficient violations that reduce government bloat!
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 9 May 2013 @ 4:27pm

Mike again makes no distinction between "mine" and "yours"
"using identifications that he had stolen from other people." -- That's much like his attitude on copyright: doesn't matter if it's someone else's work and creation, once you have the data, no matter how, it's YOURS.

Also notable is that Mike skips over the actual crimes and focuses on details of HOW gov't got the information. -- That too is similar to his legalistic defense of Kim Dotcom on basis of no US address.

But this judge, who doesn't even get named by Mike, seems to have it right.

It's just about impossible for me to NOT conclude that Mike would rather criminals (that includes Dotcom in my view) go free on what are truly mere procedural details that begin covering new technology.

I guess one could overlook Mike's quibbling IF he had proportional concerns for the known crimes on Wall Street, but those get no notice.
[ link to this | view in thread ]
shutslar (profile), 9 May 2013 @ 5:05pm

...to create an effective man in the middle attack
Am I misunderstanding this? Did this judge just make man in the middle attacks legal? If there is no assumption of privacy, then can anyone perform man in the middle attacks? On the internet? Radio signals? Other technologies? As long as there is no assumption of privacy? WOW! I think the there are a bunch of ne'er-do-wells who are now rejoicing at this new turn in the law.
[ link to this | view in thread ]
RD, 9 May 2013 @ 5:14pm

Re: Mike again makes no distinction between
"It's just about impossible for me to NOT conclude that Mike would rather criminals (that includes Dotcom in my view) go free on what are truly mere procedural details that begin covering new technology."

It is better for 100 guilty men to go free than 1 innocent man be jailed.

Pretty sure someone very wise who was involved in the formation of our country said something like this a long time ago.

You would be wise to heed his words, lest YOU find yourself on the receiving end.
[ link to this | view in thread ]
Mike Brown (profile), 9 May 2013 @ 5:15pm

Re: Mike again makes no distinction between "mine" and "yours"
"Mike skips over the actual crimes and focuses on details of HOW gov't got the information."

Well yes, the FBI's flagrant violation of the 4th amendment is the story, not the alledged criminal activity.

I don't give a rip what crime he's accused of. He could be accused of eating babies for all I care. We can't have law enforcement throwing out the Bill of Rights whenever it pleases them. This guy has only been accused, not convicted. It's INNOCENT until proven guilty, not the other way around.
[ link to this | view in thread ]
Anonymous Coward, 9 May 2013 @ 5:15pm

Re: ...to create an effective man in the middle attack
If there is no assumption of privacy, then can anyone perform man in the middle attacks?

No. That's not how it works.

There is law for cops�and then there is different law for other people.
[ link to this | view in thread ]
Killercool (profile), 9 May 2013 @ 5:19pm

Re: Mike again makes no distinction between "mine" and "yours"
HOW the government gets its information is the whole frikkin point of the *wait for it*

FOURTH AMENDMENT TO THE U.S. CONSTITUTION: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Oh, looky there! There's those damned "rights" and "restrictions" that keep on getting in the government's way.

Those pesky little things that EVERY PERSON HAS, until, and ONLY when they are convicted of a crime.
[ link to this | view in thread ]
Anonymous Coward, 9 May 2013 @ 6:04pm

Re: ...to create an effective man in the middle attack
As far as I can tell, the judge seems to be saying 'Well he's guilty, so the fact that questionable and likely unconstitutional and illegal means of discovering this fact are irrelevant, since they happened to actually be following a guilty person for once.'.

In other words, it doesn't matter how you got the evidence, as long as he's actually guilty.

Thats what I'm seeing anyway.
[ link to this | view in thread ]
Anonymous, 9 May 2013 @ 6:25pm

Re: Re: Mike again makes no distinction between "mine" and "yours"
The 4th Amendment is a lie, much like the others. The same CONstitution that enumerates these rights gave us a government that violates them and takes them away. What a scam.
[ link to this | view in thread ]
Andrew D. Todd, 9 May 2013 @ 6:42pm

Search or Ruse? (to KillerCool, #8)
Suppose that in the year 1791, a government officer, let us say, a customs officer, being in possession of a code he believed to be used by smugglers, had taken his boat out on Chesapeake Bay at night, and had covered and uncovered a lantern, according to the code, whereupon someone had started blinking out a reply code from a farmhouse on shore. I don't think the Framers would have called this a search. They would probably have used the word "ruse." When the Framers said "search," I think they meant something which included forcible entry. Now, suppose that the customs officer was very legalistic, and that he had posted his men on the roads approaching the farmhouse, while he went and woke up a magistrate to get a search warrant. Only then did he raid the place, forcibly open the door of the barn, and find two hundred casks of French Brandy, which lacked the distinctive customshouse mark, and which had not paid import duty.

That would be essentially parallel to the use of the Stinger. What the Stinger did was to broadcast a message, asking the Aircard to identify itself if it were in listening range. That is simply the way the cellphone system works, how it figures out how to route traffic to the right base station. I don't think you can call the transmission of the message to be a search, because every radio or television broadcasting tower transmits signals into and through houses. If the defendant had chosen to temporarily disable his Aircard when not in use, by removing its electric power, and/or keeping it inside a tinfoil wallet, it would not have been able to answer back.

Here's another hypothetical: supposing I go around the neighborhood, playing a recording of wolves howling. And every dog who hears it, stops whatever he is doing, and hurls back his defiance. Is that a search?

Here's rather gruesome anecdote I ran across in Rabelais: the prankster takes a dog, a bitch, in heat, kills her, and cuts out her sex organs. He uses these to make a perfume, and, in a public place, he pours it over the dress of a lady he does not like. The result is that all the local male dogs suddenly start frantically trying to jump the lady.
[ link to this | view in thread ]
horse with no name, 9 May 2013 @ 6:47pm

Fraud
There is no indication that any fraud was involved in getting those particular things.

On the face, using a fictitious name to enter into a contract is a fraud. The aircard was under one name, the laptop under another, and the apartment rented in the name of a dead guy. Yeah, no fraud here.

Do you understand why it's hard to take your argument seriously?
[ link to this | view in thread ]
Anonymous, 9 May 2013 @ 7:06pm

Re: Search or Ruse? (to KillerCool, #8)
Thanx for the ideas, dude! :)
[ link to this | view in thread ]
Anonymous Coward, 9 May 2013 @ 7:16pm

Re: Search or Ruse? (to KillerCool, #8)
Using these poor attempts at analogies; it should be perfectly fine and legal for everyone to intercept cell phone calls because they are just like lights, tv and radio. Yay!
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 9 May 2013 @ 7:55pm

As the ACLU points out, while Rigmaiden may have been committing fraud elsewhere, and may have used different names in getting the aircard and the space, there is no indication that any fraud was involved in getting those particular things. Under this ruling, you could see that doing something or buying something under an alias could be viewed as giving up one's 4th Amendment protections -- and that seems crazy.

When you misrepresent your identity for purposes of furthering unlawful activity it is different than an alias. Marcus Carab is an alias. It is doubtlessly used to allow Leigh Beadon to engage in embarrassing public performances of white boy rap using his alias, sparing him wider humiliation, scorn, mocking and ridicule.

While I could argue Leigh uses his alias in furtherance of a crime (his woeful performances) it probably would not reach the judicial standard in a few jurisdictions.
[ link to this | view in thread ]
horse with no name, 9 May 2013 @ 8:37pm

Re: Re: Mike again makes no distinction between
It is better for 100 guilty men to go free than 1 innocent man be jailed.

False dichotomy here. It's not an either or choice. Allowing people off on technicalities does not equate to mass jailing of the innocent.
[ link to this | view in thread ]
MadMatt (profile), 9 May 2013 @ 8:37pm

Re: Re: Re: Mike again makes no distinction between "mine" and "yours"
NO yu give yourself the government your elect. If your government is full of jerks, perhaps you need to look at who put them there and why. Oh and there is always the issue of who keeps electing them.
[ link to this | view in thread ]
Not That Chris (profile), 9 May 2013 @ 8:43pm

Re:
I was actually about to post something along these lines.

As far as the using Stingrays and lying to the judge, it's pretty crap that the judge lets that go. However I'm somewhat confused as to how this is an incorrect ruling regarding the privacy aspect.

I'm pretty sure for an Aircard and apartment, you have to provide (in most instances) more information than just a name, so if he provided the alias' social security number or other identifying information, that would seem more like identity fraud versus using an alias. If it falls under identity fraud, could you then make the argument that the equipment/room did not legally belong to him, therefore the 4th amendment doesn't apply because technically those weren't his "effects?" Does one have to prove that it's actually identity fraud before excluding 4th amendment protections? Or is "Your name is John Doe, this property is registered to John Smith, therefore you are not the legal owner" sufficient cause to assume identity fraud?

I'm most assuredly not a lawyer (and in most instances that seems to be a good thing), so some of the finer details may not be apparent to me, but if someone can explain why the judge here is 100% in the wrong instead of just 50%, I would be interested to understand better.
[ link to this | view in thread ]
MadMatt (profile), 9 May 2013 @ 9:08pm

Re: Fraud
Can he be charged with those "offences"? While it may be dishonest, is there a law against using more than one name at once?

Using your logic you are a fraudster. You are here using a false name. I am pretty sure your mother did not name you "horse with no name". So now your guilty of fraud it would be Ok for your laptop to the hacked to look for other evidence against you.
[ link to this | view in thread ]
Atkray (profile), 9 May 2013 @ 9:30pm

Re: Search or Ruse? (to KillerCool, #8)
So you have just proven that Aereo is a legit business.
TYVM
[ link to this | view in thread ]
horse with no name, 9 May 2013 @ 9:57pm

Re: Re: Fraud
Using your logic you are a fraudster.

No, I don't pretend to be someone else to enter into a legal contract. My name here for now is no different than calling yourself MadMatt, there is no intent to deceive or defraud anyone for gain.

He committed fraud by using false names to enter into a contract to purchase, to rent, or to receive services.

You need to look up and understand fraud.
[ link to this | view in thread ]
Anonymous Coward, 9 May 2013 @ 11:06pm

Re: Re: Re: Mike again makes no distinction between
Not a false dichotomy. that is what actual justice means; that you minimize the chance of an innocent person getting gaoled, even if it means that the guilty can abuse those mechanisms.
[ link to this | view in thread ]
Andrew D. Todd, 10 May 2013 @ 1:22am

Re: Re: Search or Ruse? (to KillerCool, #8)
Look at Walter F. Murphy, _Wiretapping on Trial: A Case Study in the Judicial Process_ (1965). Wiretapping law effectively dates from the Olmsted case. In 1924, Roy Olmsted, a sometime Seattle Police lieutenant, was arrested for bootlegging, that is, for importing and selling whiskey, contrary to the prohibition law. He had been caught by wiretap. His case reached the Supreme court in 1927-28. The "originalist" school, as represented by Chief Justice (and former President) William Howard Taft, said that whatever a telephone connection was, it was not tangible property, and the Fourth Amendment did not apply. The "living constitution" school, represented by Justice Louis Brandeis, held that the Fourth Amendment needed to be interpreted metaphorically, so that it could stretch to reach new technology such as the telephone.

Applying the metaphorical principle, a cell-phone's ringer number does in fact particularly describe it. From Justice Brandeis's standpoint, the point of "particular description" is not necessarily a street address, it is that the police have to tell a story which is so specific that they cannot afterwards back down from it, that they can't just go around looking for some kind of evidence of some kind of crime, in the hope of getting lucky. The FBI went before a judge, and described how they had arrived at that ringer number, made the necessary oaths, and received permission to home in on it, without actually having to enter private property. The method of homing was substantially similar to the body of techniques which are used to navigate airplanes. These techniques do particularly describe points in space, to the point that airplanes are able to take off and land safely. With this information in hand, they proceeded to deal with the apartment building management. They were not violating the spirit of the Fourth Amendment. At every stage of the proceedings, their next move was based on hard evidence, with at least 99% reliability, and at every stage, they went to a judge, and showed their evidence.

One thing I noted was that the defendant was representing himself pro se ("a fool for counsel, and an idiot for client"), after having fired five successive lawyers. Obviously, he didn't like what they had to tell him, that it was time to go to plea-bargaining.
[ link to this | view in thread ]
Ninja (profile), 10 May 2013 @ 3:38am

Re: Re:
so if he provided the alias' social security number or other identifying information, that would seem more like identity fraud versus using an alias

Friends? Relatives? The owner of the apartment he was living? I"ve seen plenty of instances where the rented place would offer all infra-structure for a reasonable price tag.

therefore the 4th amendment doesn't apply because technically those weren't his "effects?"

What about the 4th Amendment of the owner? It doesn't matter what the fuck is happening, law enforcement should get warrants to do what they must. What would impede them from setting up somebody just to get the right to override the 4th then say "oops, sorry" afterwards?

Or is "Your name is John Doe, this property is registered to John Smith, therefore you are not the legal owner" sufficient cause to assume identity fraud?

That shouldn't even be an issue. a warrant is needed regardless of what the fuck is going on.

The judge is 100% in the wrong because regardless of what's being done it needs a warrant. And the simple fact that tons of mobile phones got caught in the process makes it much more worrying. We don't want law enforcement to engage in fishing expeditions.
[ link to this | view in thread ]
Anonymous, 10 May 2013 @ 3:46am

Re: Re: Re: Re: Mike again makes no distinction between "mine" and "yours"
I have no faith in the American people either.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2013 @ 4:41am

Re: Re: Mike again makes no distinction between "mine" and "yours"
"Mike skips over the actual crimes ..."

I thought this whole article was about the crimes being committed by the FBI when they violate our constitution.

People like o_o_t_b are the reason police states are able to exist. They can't understand why the government has to follow its own rules.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2013 @ 5:43am

Re: Mike again makes no distinction between "mine" and "yours"
Is this the o_o_t_b who was complaining that the govt. was stealing our privacy and freedom while Mike was complaining about copyright?

Get back on your meds!

Mike believes that EVERYONE should be subject to the rule of law, ESPECIALLY those people we charge with enforcing it. why is that such a hard concept to grasp?
[ link to this | view in thread ]
Anonymous Coward, 10 May 2013 @ 6:32am

Re: Can't the government just outsource their 4th amendment violations?
As Bioshock Infinite has made me aware, the United States used to do this, until the Anti-Pinkerton Act was passed by your Congress in 1893.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2013 @ 6:50am

Re: Re: Mike again makes no distinction between "mine" and "yours"
Because o_o_t_b doesn't believe either in governments and companies, and thinks that Mike unjustly supports a few companies - usually "Google", as a paid shrew. Yeah, he (ootb) is somewhat annoying in the defense of his opinions, but that is to be expected. I believe he could be classified as an "Anarcho-liberal", this strange mix of creatures, neither fowl nor fish, who both loathe governments and praise freedom and property, while simultaneously ignoring that without governments we could only have freedom and properties directly proportional to our (individual) measure of strenght. I wonder, ootb, are you on zombie survivalism, or any kind of survivalism?
[ link to this | view in thread ]
Not That Chris (profile), 10 May 2013 @ 11:49am

Re: Re: Re:
Friends? Relatives? The owner of the apartment he was living?

I guess I can see an argument for an expectation of privacy when one of these applies, but in this case, none of those examples fit. He rented the apartment using the identity of a dead person, so obviously not someone who can vouch for this person's legitimate use of the apartment.

What about the 4th Amendment of the owner?

Again, in this instance, the registered owner of these effects is totally entitled to 4th amendment protections. Rigmaiden, however, was not the registered owner and the original article states that the identity was stolen. I suppose this is assumed, so maybe there's some wiggle room in terms of the use of the Aircard.

That shouldn't even be an issue.

I believe there are "reasonable suspicion" laws that allow police to do things without a warrant based on the premise they think something illegal is occurring. If I'm driving a "borrowed" car, and get pulled over, does the police officer need to get a warrant to search the vehicle if he suspects its stolen? Or at least a warrant after the fact? I don't know what the limitations are on laws like this.

While I agree that the Constitution and its personal protections (are supposed to, but it seems more and more don't) trump most anything, I guess I'm still missing something from the argument. Is the argument more that he is entitled to these protections because it has not been proven yet that he fraudulently acquired these items? So the issue is since the dead apartment owner hasn't been proven dead yet, he should still be treated as if he was just borrowing somebody else's apartment and Aircard until such time as fraud is proven?

The last thing I'll throw in here, since it doesn't appear to be mentioned in the summary and is probably worth noting, is the judge making the decision also cited "a number of precedent-setting cases to support his decision, including a Ninth Circuit decision that a defendant can have no expectation of privacy in a computer that is obtained through fraud." So in this case, he's not the first judge to disregard this protection. However, the ACLU makes the argument that this instance is not fraud, but the use of aliases. I guess I'm not sure legally when lying about who you are (and making purchases as such) moves from using an alias to fraud (kind of like how important do you have to be such that murder becomes assassination).
[ link to this | view in thread ]
Anonymous, 10 May 2013 @ 5:36pm

Re: Re: Re: Mike again makes no distinction between "mine" and "yours"
Has he actually said that he is an "anarcho-liberal"? I'll tell you right now that I am a straight-up anarchist.
[ link to this | view in thread ]
Anonymous Coward, 13 May 2013 @ 8:17pm

Re: Fraud
I thought that under Common Law there was no obligation to use any particular name provided you weren't using an alias to commit fraud (say, by using a false name and then disappearing untraceably, or what is now called identity theft).

Of course, there might be stricter restrictions under statute law, but at leaf traditionally using an alias was not itself fraudulent.
[ link to this | view in thread ]
Shaynene1, 28 May 2013 @ 6:28pm

Re: Re: Mike again makes no distinction between "mine" and "yours"
They are not rights but merely privileges.
[ link to this | view in thread ]
Acer Laptop On Rent in Bangalore, 5 Jun 2013 @ 5:07am

Tell the truth
That's a very serious matter and also having huge responsibility on ACLU. This is gone be very vast debate. Thanks for sharing...
[ link to this | view in thread ]
Gnocci, 23 Jan 2014 @ 6:23pm

Re: Can't the government just outsource their 4th amendment violations?
I am too tired to source, but if they hire them to do the task that private person "should" be considered a "government actor" based on the "totality of the circumstances". At least that's the theory.
[ link to this | view in thread ]
Rando, 23 Jan 2014 @ 8:42pm

Re: Can't the government just outsource their 4th amendment violations?
There's a legal principle called "agency" that keeps the government from contracting out as a way of getting around the 4th Amendment. In the situation you've described, any private investigator will likely be found to be acting on behalf of the government (aka their agent) and the government will likely be held responsible for the acts of their agents. No end run around constitutional rights.
[ link to this | view in thread ]
Will (profile), 24 Jan 2014 @ 2:20am

Re: Can't the government just outsource their 4th amendment violations?
No, because then the 3rd parties would be acting as their agents� or at least that's how defence counsel would likely argue against any such evidence being admissible.
[ link to this | view in thread ]
Dragnet, 23 Dec 2016 @ 7:44pm

The Point Is
this guy stole money from us. A crook is a crook. Sometimes it takes unconventional technology to catch crooks. I have no problem the way they caught him. Or are you OK for him to illegally steal money from your bank account as well.
[ link to this | view in thread ]