American law enforcement has fallen in love with the Stingray, a type of gadget that impersonates cellphone towers in order to gather information from people’s mobile devices. The small devices can be driven around in trucks, attached to police officers bodies, and even strapped to the bottom of planes and flown near people of interest.
Some state lawmakers seem distinctly less charmed by Stingrays, which are also called cell site simulators. On Monday, for example, legislators in Washington State voted a bill out of a Senate committee that would put restrictions on their use. The bill already passed the House unanimously and, if signed into law, would become the strongest state limits on the books covering these cellphone interceptors.
And in December, Maryland’s top court overturned felony-murder and kidnapping convictions of two men in Baltimore County because the prosecution at trial failed to have an expert testify regarding how police officers track criminal defendants by cell phone tower routing. The Court of Appeals said the intricacies of tracking cell phone calls are beyond the general public’s knowledge and must be explained in court by someone who qualifies as an expert to the trial judge’s satisfaction.
Washington’s bill would require law enforcement to show probable cause and obtain a warrant before using a cell site simulator; explain how the device would be used and what data will be gathered; and limit the amount of data inadvertently gathered about bystanders. The last requirement is a tricky one: By their nature, Stingray-type gadgets gather information about all phones within range. The provision would ban the use of that information in other investigations or prosecutions. Anything picked up from bystanders without warrant would need to be immediately destroyed.
Similar legislation already passed in Virginia, and the American Civil Liberties Union now calls the state the first in the nation to specifically require a warrant for cellphone intercepters. About a dozen states have more general laws on the books that seem to require warrants for Stingray use, but advocates and law enforcement officials don’t always agree on how those statutes should be interpreted. The San Bernardino county counsel, for instance, replied to a public records request by a local reporter last fall with a letter saying it wasn’t required to obtain a search warrant before using Stingrays because the law only requires warrants for devices that track movement. The letter said law enforcement instead obtains a court order.
While some observers still argue that any use of a Stingray is unconstitutional by default, civil libertarians have welcomed the push by state lawmakers to add new restrictions. “This Virginia law shows a particular interest to make sure there isn’t a loophole,” says Nathan Wessler, a staff attorney at the ACLU.
The Washington legislation goes further than the Virginia law by requiring a more stringent approval process where police lay out what they’re actually doing. In the past, judicial oversight hasn’t proven to be completely effective on its own. Washington Rep. David Taylor, the Republican pushing the bill, pointed to the fact that judges in Pierce County had been approving warrant requests that they only learned later applied to Stingrays. “They had no clue what they were authorizing or the scope of information that was being collected,” he said during a public hearing.
Taylor has been at the center of a wave of activity in Washington over law enforcement’s use of technology. Last fall a man began requesting every single video gathered by police-worn body cameras, sparking an effort to reform the state’s liberal public records law. Both houses of the state legislature approved a bill last year regulating government use of drones, which was vetoed by the governor. Another version of the bill was introduced this year and has passed the House.
Taylor has tried to push a single sweeping bill strengthening protections against overreach by law enforcement, but that approach has stalled. “For whatever reason there’s been a lack of desire to move the broad cover-everything bill and focus on the specific technologies,” he says. “I’m OK with that, we’ll get there.”
There has been little opposition to the Stingray bill in Washington. Law enforcement agencies have stayed out of the debate, volunteering little information about how or even whether they use Stingrays. At a public hearing, meanwhile, Taylor admitted that he really had no idea which agencies even owned the devices.
At least 48 agencies from 20 states and the District of Columbia own cell site simulators, according to the ACLU. The refusal of law enforcement officials to say anything about how the devices work or how they are used has only served to enhance their sinister reputation. The insistence on secrecy has worked to the advantage of some defense lawyers, who have been gaining increasing traction in court by pushing for disclosure. In a recent case in Baltimore, a judge threatened to hold a detective in contempt of court for refusing to discuss the technology; prosecutors decided against using the evidence rather than push the matter. A man accused of robbery in Florida got a generous plea deal after it became clear that details about the technology would come out in trial.
State laws can’t completely regulate the use of Stingrays, since federal agencies also use the devices. While some privacy advocates would like to see the devices banned altogether, there is little chance of that happening in the near future. But combined with action in the courts and calls from federal lawmakers for more attention to the issue, local lawmakers are further illustrating a key point: the secret is out.
The Daily Record’s Steve Lash contributed to this article.