Are the Police Tracking My Phone?

 Posted on July 10, 2017 in Criminal Defense

By: Kenneth Baker and Raymond Dall’Osto

Law enforcement agencies across the country have employed a closely-guarded technology that simulates a cell phone tower. Known as Cell-Site Simulators or “Stingrays,” police can use this technology to secretly obtain information from every cell phone within at least a 650-foot radius, even when they are not in use. Stingrays pull in all cell phones in the vicinity, not just the targeted number, to obtain information with it without the cell phone user knowing. These Stingrays are portable and compact, capable of being placed in locations around the city.

Originally developed for use in NSA and national security investigations of terrorist operations over fifteen years ago, Stingrays are now regularly used by law enforcement agencies for spying on low-level marijuana dealers and other criminal suspects. “I am not aware of any case in which a (local) police agency has used a cell-site simulator to find a terrorist,” Electronic Frontier Foundation’s Jennifer Lynch said in December 2016.

The Department of Justice and the Department of Health Services both require their agencies to have probable cause prior to obtaining a search warrant for the use of a Stingray. However, the Federal Bureau of Investigation and some local law enforcement agencies have signed non-disclosure Agreements prohibiting disclosure in any court proceeding regarding the collection of cell phone data through the use of Stingrays. According to the ACLU, the City of Milwaukee Police Department, as well as Wisconsin State Law Enforcement agencies, have used Stingrays to track cell phones.

The ACLU and the Electronic Frontier Foundation believe that such general, warrantless searches are unreasonable and violate the Fourth Amendment. Gimbel, Reilly, Guerin & Brown, LLP Attorney Ray Dall’Osto believes that the United States Supreme Court’s June 2014 decision in California v. Riley, which made it mandatory for police to get a search warrant before downloading information from a suspect’s cell phone, should apply to the use of Stingray technology and generalized searches, without minimization, to protect the privacy of non-targets.

The Department of Justice justifies the use of the technology as a “valuable assistant in support of important public safety objectives. It claims that cell-site simulators fulfill critical operational needs in fugitive apprehension, complex narcotics investigations and locating kidnapped children. In addition, the Department of Justice stresses that the use of cell-site simulators are permitted only as authorized by law and policy and after a search warrant is obtained. Officers requesting the use of this technology must describe the underlying purpose and activities for which a warrant is being sought, as well as consulting a prosecutor in advance of using a cell-site simulator. Law enforcement agencies across the country are aware that because these devices collect data from all cell phones in the vicinity, individuals who are not subject to the warrant will have their information collected by the Stingray.

This unwarranted collection of data and invasion of privacy is a very legitimate concern. Such collection of information is a violation of the Fourth Amendment’s guarantee for every citizen to remain free from unreasonable searches and seizures from the government. By not narrowing or minimizing the focus of the Stingray search to the individual cell phone for which the search warrant was issued, police are obtaining access to innocent bystanders’ cell phones, which is a serious concern for individual privacy.

Stingray cases are working their way through the courts now. If you or others you know face a prosecution involving Stingray evidence or invasion of cell phone privacy, you need to retain experienced legal counsel who are knowledgeable in constitutional law, technology and who regularly use forensic computer experts. The lawyers at Gimbel, Reilly, Guerin & Brown, LLP are knowledgeable and experienced in this area. Contact the experienced constitutional law attorneys at Gimbel, Reilly, Guerin & Brown, LLP at (414) 271-1440 to schedule a consultation today.

Sources:

http://www.chicagotribune.com/news/plus/ct-cellphone-tracking-devices-20160129-htmlstory.html

National Association of Criminal Defense Lawyers – UC Berkeley, School of Law

https://www.aclu.org/map/stingray-tracking-devices-whos-got-them

Department of Justice Police Guideline: Use of Cell-Site Simulator Technology

“Groups decry Milwaukee police’s warrantless use of ‘Stingray’ tracking,” Milwaukee Journal-Sentinel (February 1, 2016)

http://archive.jsonline.com/news/crime/groups-decry-milwaukee-polices-warrantless-use-of-stingray-tracking-b99660842z1-367246261.html

“Long-secret Stingray manuals detail how police can spy on phones,” The Intercept (September 12, 2016)

https://theintercept.com/2016/09/12/long-secret-stingray-manuals-detail-how-police-can-spy-on-phones/

“Wis attorneys applaud ruling on warrantless cell phone data searches,” Wis. Public Radio (June 25, 2014)

http://www.wpr.org/wisconsin-attorneys-applaud-supreme-court-ruling-warrantless-cell-phone-data-searches