Prosecutors Say Cops Don't Need Warrants For Stingrays Because 'Everyone Knows' Cell Phones Generate Location Data

from the we'll-let-you-know-when-you-have-an-expectation-of-privacy dept

Mon, Jan 25th 2016 2:06pm — Tim Cushing

Up in Baltimore, where law enforcement Stingray device use hit critical mass faster and more furiously than anywhere else in the country (to date...) with the exposure of 4,300 deployments in seven years, the government is still arguing there's no reason to bring search warrants into this.

The state's Attorney General apparently would like the Baltimore PD's use of pen register orders to remain standard operating procedure. According to a brief filed in a criminal case relying on the warrantless deployment of an IMSI catcher (in this case a Hailstorm), the state believes there's no reason for police to seek a warrant because everyone "knows" cell phones generate data when they're turned on or in use. (h/t Brad Heath of USA Today)

The whereabouts of a cellular telephone are not "withdrawn from public view" until it is turned off, or its SIM card removed. Anyone who has ever used a smartphone is aware that the phone broadcasts its position on the map, leading to, for example, search results and advertising tailored for the user's location, or to a "ride-sharing" car appearing at one's address. And certainly anyone who has ever used any sort of cellular telephone knows that it must be in contact with an outside cell tower to function.

The state's brief folds in parts of the Third Party Doctrine and the Supreme Court's 1979 Smith v. Maryland decision to make a truly terrible argument that because certain aspects of cell phones involuntarily create location data, the Fourth Amendment never comes into play.

Matt Blaze rephrases the state's argument slightly, exposing the ridiculousness of this assertion.

"People let people into their houses sometimes, therefore no warrant is needed to search houses". Or something. https://t.co/XncuaZvdwW
— matt blaze (@mattblaze) January 14, 2016

"People let people into their houses sometimes, therefore no warrant is needed to search houses". Or something.

The state follows this up by arguing that, because the use of a pen register order to deploy an IMSI catcher is not expressly forbidden by local statutes, the evidence shouldn't be suppressed.

There was no cellular tracking device statute in effect at the time. There was an order from a neutral magistrate, finding probable cause to authorize precisely what was done in this case; the closest applicable statute does not contain an exclusionary provision. Thus, the court erred in excluding evidence in this case.

All well and good, except that the only reason there was no statute in place is because local law enforcement spent years keeping its cell phone tracking devices hidden from judges and defendants, obscuring the technology through parallel construction and misleading pen register order requests. This case is no different than the hundreds preceding it. The magistrate judge signing the pen register order had no idea what the Baltimore PD was actually doing. The presiding judge in this prosecution declared the Baltimore PD's pen register request contained "material misrepresentations" on his way towards granting the suppression of evidence.

For the state to claim everything was above board and no Fourth Amendment violations occurred is rather audacious, considering it spent months dodging discovery requests related to the methods used to locate the defendant.

The request, asking for no more than what the State was compelled to disclose pursuant to Maryland Rule 4-263, sought: 1) "records, notes, and documents" relating to the Baltimore Police Department's investigation into a second suspect from the April 27, 2014 shooting; as well as 2) information "indicating how Mr. Andrews was located at 5032 Clifton Avenue."

Over two months later, on January 8, 2015, the State responded to the discovery request. The State claimed not to "possess information related to the method used to locate the Defendant at 5032 Clifton Avenue." (T1 9) This turned out to be false.

In fact, the state did not turn over its IMSI catcher-related information until mid-May 2015, more than seven months from the point it was originally requested. That's a long time to withhold information on a Hailstorm deployment the state now claims was both perfectly legal and intruded on no one's privacy.

Andrews-State-App-Brief (PDF)Andrews-State-App-Brief (Text)

Andrews-Appellee-Brief (PDF)Andrews-Appellee-Brief (Text)

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Filed Under: 4th amendment, baltimore, cell phones, expectation of privacy, hailstorm, imsi catchers, police, stingrays, warrants

35 Comments

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Anonymous Coward, 25 Jan 2016 @ 2:18pm

Everyone Knows...
That my Doctors generate medical data about patients, so how about we get their medical records on public display without warrants!
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Mark Wing, 25 Jan 2016 @ 2:22pm

If everyone knows, then why are they hiding its use?
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Anonymous Coward, 25 Jan 2016 @ 2:22pm

"And certainly anyone who has ever used any sort of cellular telephone knows that it must be in contact with an outside cell tower to function."

And certainly anyone who has ever owned a house knows that it must be in contact with the earth and have an address to function.

So with that logic the only things that need a warrant is the broken cell phone my daughter plays with and a house with no address?
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Anonymous Coward, 25 Jan 2016 @ 2:31pm

Re:
Well... you don't technically own your home or land or yourself.

Stop paying taxes and find out who owns what and what owns YOU!
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DB (profile), 25 Jan 2016 @ 2:32pm

How misleading.

How many people know that cellphones report their location?
How many people know the details?

I would argue that, up to a point, the more sophisticated you are the less you expect that a cell phone is reporting your location.

Anything considered a smartphone has a GPS receiver inside. But it's reasonable to expect that data is solely used internally. Dashboard GPS mapping units didn't transmit anything, and they were able to provide the same functionality as a map application on smartphones.

Previous generation phones, roughly the 'feature phone' generation, did implement E911 location service. But that service was explicitly off for most of the time, wasn't sent with every call, typically had an explicit icon on the screen, and could be disabled.

Even when browsing with a smartphone, most browsers explicitly ask "would you like to share location data..." when a website requests the location.

You have to be pretty sophisticated to know that the cell phone system generates and uses an internal model of the transmitter location in order to handle the details of tower hand-off, transmitter power settings, slot assignments and beam forming. Something like 0.01% of the population has a working understanding of how the system functions.
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AnonCow, 25 Jan 2016 @ 3:16pm

Here is some additional Stingray logic:

The Constitution is written on paper. Paper can be shredded, so the Constitution can be ignored when it suits the police.
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Anonymous Coward, 25 Jan 2016 @ 3:18pm

Nobody Knows....
I guess no one knows that if you leave your cell phone at home, it can't report your location.
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Anonymous Coward, 25 Jan 2016 @ 3:25pm

They don't believe search warrants are needed because cell phone towers generate location data? That's like saying they don't need search warrants for your browsing activity with your ISP because they generate an IP address for you to browse the internet.

Uh, you still need a search warrant. Just because that data exists somewhere or is collected by someone doesn't mean you can demand that information without a search warrant.

Due process is a legal requirement that every law enforcement agency is required to adhere to. Just because they "think" they are not required to obtain a search warrant doesn't make it true. This is why the federal courts routinely throw out evidence that has been acquired without due process.

Prosecutors will do or say anything in order to hobble the defense of a suspect who is charged with a crime. They're not interested in justice, all they are interested in is their conviction rates.
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Anonymous Anonymous Coward, 25 Jan 2016 @ 3:33pm

Analogy
Prosecutors don't 'need' oxygen, but the laws of biology seem to like it, and there are consequences when they don't get it. Just like they don't 'need' warrants, but the laws of the land (AKA Constitution) seem to like it, and there are consequences when they don't get one.

Hopefully the court sees things in this light.
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Anonymous Coward, 25 Jan 2016 @ 3:38pm

Re:
You don't need a GPS in your phone to be located.

Unless you are in a rural area with only a single cell phone tower, phones are found by:

https://en.wikipedia.org/wiki/Direction_finding

https://en.wikipedia.org/wiki/Mobile_phone_tracking
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Anonymous Coward, 25 Jan 2016 @ 4:18pm

Re:
pretty sure they are scoping up all your (everyone's) browsing history...
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Tin Foil Hat, 25 Jan 2016 @ 4:23pm

Supreme Court has Already Ruled Sort Of
The police argued that because they could watch as people drove around on a public street they didn't need a warrant to attach a tracking device to somebody's car. The supreme court ruled that the ease with which surveillance could be accomplished technologically changed the nature of that surveillance and required a warrant. This is the same situation and eventually will yield the same result. Hopefully dangerous criminals will not be released because those entrusted to manage our three branches of government believe the law should not apply to them, especially when the warrant process is more rubber stamp than oversight. I wish they would expend an iota of energy to half-heartedly feighn respect for the law and the citizens they are supposed to represent.
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Whatever (profile), 25 Jan 2016 @ 4:38pm

Re: Re:
You are correct, and I think that law enforcement may have a point here.

If carry around a radio transmitter device that "phones home" every few seconds to stay active on the network, you should not be surprised that you can be located. Even with a single tower, they can figure out approximate distance and direction from the tower (based on signal strength on individual antennas, if need be). It's a basic concept.

The public would generally be aware because pretty much every phone without exception has a signal meter (how many bars?) and people can easily understand that they are using both a radio transmitter and that the signal changes based on your location.

Let's put this in context. If a person had a CB radio (old technology, I know, but work with me here) and trasmitted a signal over the airwaves every 3 seconds, it would be a piece of cake using basic technology to track them down. Would you need a warrant for that?

I also think there is a very big difference in reality between the basic phone data for connecting and the content of the phone call itself. The content of the calls should require a warrant. The information transmitter over public airwaves to enable and keep the device working shouldn't be protected in the same manner.
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Anonymous Coward, 25 Jan 2016 @ 4:39pm

IF there was truly a legal exception for "but everybody knows it" then the EFF, ACLU and Wikimedia wouldn't keep having their lawsuits kicked out for lack of standing.
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z! (profile), 25 Jan 2016 @ 4:39pm

It should be pretty simple- if law enforcement wants to use the "pen register" order, they should only be allowed to use what a real pen register would produce: the number dialed. Nothing else.
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Anonymous Coward, 25 Jan 2016 @ 4:50pm

Re: Re: Re:
I would point out that the presence of a signal meter doesn't necessitate a transmission from your device. I can easily design a device which measures the strength of a signal that I'm receiving without transmitting anything back.

Also, the question is not about how easy they are to track down. That is, in fact, completely irrelevant. There's no legal standard of "you need to get a warrant only if tracking them is x level of difficulty."

And just a question, would this qualify as "public airwaves?" My understanding was the frequencies used by cell networks had been auctioned off to said networks a while ago, making them private airwaves.
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Anonymous Coward, 25 Jan 2016 @ 5:28pm

Re: Re: Re: Re:
The devices are also only legally allowed to be used in a state of emergency since they can and do interfere with the regular day to day operation of the devices on the airwaves it uses. None have ever been used in this way so they have all been used against the FCC waver given when applied for the devices. They also completely do away with any pretense of legality once they are used to change settings on the phones and or place 3rd party spyware on them. This turns the private cell phones into police hacked surveillance devices that are now informing on your location, giving up your contacts, pictures and text history as well as acting as a real time audio bug to capture any supposed private conversations.
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Whatever (profile), 25 Jan 2016 @ 7:13pm

Re: Re: Re: Re: Re:
A stingray does not change the settings on the phone or install malware or a virus. Most of them appear to be configured as a pass thru so that cell service in not disrupted anyway.

The legality of listening to the audio is different from that of location. Location data is obtained without needing a stingray device, however having one in close proximity to a target can help dramatically in pinpointing their location. It's a basic requirement and function of a cellular network to know where a phone is (approximately) and to use signal strength on multiple towers to provide the best service possible. If you turn on your cell phone, someone always knows just about where you are.
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Anonymous Coward, 25 Jan 2016 @ 8:30pm

I guess we don't need a reason for vigilantes to start shooting dirty cops because we all know most of them are corrupt criminals hiding behind a badge.

Must be nice to be able to rationalize things like you are a king and everyone else has to follow rules you exempt yourselves from.
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Anonymous Coward, 25 Jan 2016 @ 8:36pm

Re: Re: Re:
basic privacy laws and the constitutional rights people are supposed to have perhaps. Otherwise that's a third world country style of living there.
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Anonymous Coward, 25 Jan 2016 @ 8:37pm

"Well, they didn't say we COULDN'T..."
> There was no cellular tracking device statute in effect at the time.

So... can we use the same excuse? Hmm... Wonder where Maura Healy's phone is right now...
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Blackfiredragon13 (profile), 25 Jan 2016 @ 9:50pm

So by this court's logic....
We all know what goes in the toilet, so can the cops walk into the bathroom stalls and collect your "waste" shall we say?
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ramriot, 26 Jan 2016 @ 5:40am

Re: Re: Re:
Sorry but you are wrong Sir,

The point here is that laws are made in the context of current technology, for this one it was Letter Post.

For letter post the content, is the key intelligence that leaks the most private information thus is constitutionally protected in the strongest manner. Not so the outside of the envelope, which is routinely recorded and tracked and passed on to LEO as needed without a warrant (Not that I agree with this either).

With a cell-phone though the content is private and protected by law but the tracking information and other metadata associated with use is often much more useful and leaks substantially more private information (Where you go, who you talk to etc). Thus it is the opinion of many, including the EFF and some in congress that indiscriminate metadata collection is not legal.
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DannyB (profile), 26 Jan 2016 @ 5:42am

Re: Everyone Knows...
Everyone knows that people's homes contain their possessions, so no warrant should be needed to search people's homes.
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DannyB (profile), 26 Jan 2016 @ 5:45am

Everyone Knows
Everyone Knows that Stingray gathers way way WAY more than just location information from ALL nearby phones.

Therefore a warrant should not be needed for Stingray, because Everyone Knows that it is a tool for intrusive, unwarranted (pun intended) invasion of the privacy of everyone in the nearby area.
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Jeremy Lyman (profile), 26 Jan 2016 @ 5:49am

Re: Everyone Knows...
Everyone knows that automobiles exist in time and space, so GPS trackers can be attached to them without warrants.
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Wendy Cockcroft, 26 Jan 2016 @ 7:32am

Re: Re:
Homeless people don't pay taxes.
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Whatever (profile), 26 Jan 2016 @ 9:01am

Re: Re: Re: Re:
I don't think I am wrong. I don't happen to agree with the EFF's view on this, they tend to come down way far over there in protecting all sorts of questionable speech and speakers. Their take on this may sound logical, but it flies in the face of simple reality.

if you carry a transmitter in your pocket they routinely uses the public airwaves to establish a connection with the cellular network. it should come as no surprise that any number of people would be able to locate you based on this information. Without the cellular network being able to determine your location, they would never be able to make your phone ring or send you a text message.

Heck, the wouldn't be able to charge you roaming fees and roaming data costs... that just wouldn't do!

Use of the public airwaves for me pretty much ends the concept of absolute privacy. I still do think that the actual content of calls is private. But your location on the cell network isn't quite so simply private.

So really I am not wrong, I am just of a different opinion, and I respect that you have a different opinion. This is the sort of legal question that plays well in SCOTUS.
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None-e-must, 26 Jan 2016 @ 10:30am

Re: Re: Re:
Have you ever attempted to locate a cell phone with out triangulation? Further, like another poster stated, the airwaves are no more public than private roads in gated communities are. Through the attempt of simplicity to argue facts, the understanding of complex situations have been lost.

People traveling outside of their homes and curtilage have no expectation to privacy in a visual sense. Reasonable Articulable Suspicion must be present in order to search a person's person where an immediate threat of destruction of evidence that a crime is being committed may occur; no randomized searches are allowed due to the 4th ammendment's expectations. Other than this, a warrant requirement is still necessary to search every thing else. The default to searching is a warrant, not an exception. Airwaves and data should be no different, though this was definitely moved away from when the threats of terrorism were said to be persistent.

For those that have never written, executed, or testified in support of a warrant which is essentially an affidavit of probable cause; warrants require specificity for what is being searched for, where one will search for it, and why it's being searched for. One cannot simply write a warrant request to the courts for "Anything and everything pertaining to Mr. X". The inherant problem with Stingray et. al is that they are not specific in their gathering of data, further, there is no oversight when a warrant is not required. This differentiation is extremely important to understand if one were to attempt an allusion between license plate reading technology, which in some jurisdictions is still legal, as it exponentially speeds up what an Officer can already do, sans warrant, due to the Plain View Doctrine.

Back to your last paragraph (still following?), the airwaves your data travel on, due to an agreed upon contract between you and a private entity, much like landline telephone communications back in the day, are not on public networks, are not for public consumption, and therefore, are completely private. There is no way, no how, to "reason" that anything less than a warrant is in keeping with statute and case law concerning the acquisition of this information by the Government.
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DocRobot (profile), 26 Jan 2016 @ 11:23am

Re: Re: Re:
Homeless people spend money, just less than most people.

Ego, they still pay sales taxes, liquor taxes, et al.

I think you meant to say Homeless people don't pay Property Taxes as they do not own a home...
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Anonymous Coward, 26 Jan 2016 @ 12:23pm

Warrant arguments aside, this shows the value of Stingrays to law enforcement. After all, Baltimore is a paragon of law, order, and justice.
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nasch (profile), 26 Jan 2016 @ 12:28pm

Re: Re: Re: Re: Re:
Without the cellular network being able to determine your location, they would never be able to make your phone ring or send you a text message. Heck, the wouldn't be able to charge you roaming fees and roaming data costs...

That's not true, the network only needs to know what cell you're connected to, which gives only a very broad indication of location.
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Broylesjb (profile), 27 Jan 2016 @ 7:24am

Re: Re: Re:
The problem with your theory is that they weren't requesting tower data from the carrier which is perfectly legal with a pen register. They were spoofing a tower themselves and retrieving information from the privately owned cellphone of the suspect. Warrant needed.
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Reverend Draco, 27 Jan 2016 @ 9:21am

Re:
It's like saying they don't need a search warrant for your house because the address is listed int eh White Pages.

(Shit - I better keep that idea on the QT, or they might try it)
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StingrayBob, 28 Jan 2016 @ 9:30pm

judges
With a tool like this, it's high time we start expecting all lawyers and judges involved to be far more technically informed on the subject.

This police office may have signed an illegal non-disclosure agreement, yet they are making claims on what "everyone" knows.
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