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

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.

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

The Fourth Amendment Two-Step

from the where-your-privacy-has-gone dept

Tom Lee has already weighed in with an excellent post on the news that law enforcement officials are often able to turn cell phones into real-time tracking devices without having to make the traditional showing of probable cause required for a search warrant. But it may be worth lingering a bit over the tortuous legal history that is being used to justify a form of snooping that is, intuitively, almost as intrusive as a conventional physical search.

The problem is a series of precedents that, as legal scholar Richard Posner has observed, enable the government to do a two-step end run around the Fourth Amendment. In the 1974 case California Bankers Association v. Schulz, the Supreme Court ruled that the Bank Secrecy Act, which required financial institutions to collect certain kinds of information from customers, did not run afoul of the Fourth Amendment's privacy protections. (Similarly, Enhanced 911 rules implemented in 1998 required telecom providers to make their networks capable of pinpointing the locations of cell users for the convenience of 911 operators.) The Court reasoned that "the mere maintenance by the bank of records without any requirement that they be disclosed to the Government" did not constitute an "illegal search and seizure." But two years later, in U.S. v. Miller, the Court determined that individuals lost their "expectation of privacy" in such information once it had been turned over to a third party, such as a bank. And businesses such as banks, unlike individuals, could not claim Fourth Amendment privacy interests in their records.

That brings us to 1979's Smith v. Maryland, in which the Court determined that no "search" was conducted, for Fourth Amendment purposes, when police sought to obtain from telephone companies a list of the numbers dialed from a particular telephone. The Court's reasoning was two pronged: In part, the justices relied upon the "third party" rationale of Miller. But they also noted the ways that such information gathering was distinct from, and less intrusive than, eavesdropping on the calls themselves: "Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers."

Different jurisdictions have differed on how this logic applies in the case of cell tracking, where there's the added hurdle of language in the Communications Assistance for Law Enforcement Act that would appear to forbid using a mobile phone as a GPS device without a full-fledged search warrant. It seems likely that, at least in the near term, judges will rely on such statutory constraints to check such tracking. But it also looks like a good reason for the courts to revisit this whole line of Fourth Amendment jurisprudence, and reconsider whether, when so much data about us is stored in a variety of "third party" databases, it makes sense to presume citizens have no reasonable expectation of privacy in such information, even when the "third party" has pledged not to share it.

Filed Under: fourth amendment, gps, mobile phone tracking, privacy