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Landmark CSA ruling takes some sting out of ‘StingRay,’ but long-term impact unclear

Judge Andrea M. Leahy, writing for the panel, found that “people have a reasonable expectation of privacy that their cell phones will not be used as real-time tracking devices by law enforcement.” (File)

Judge Andrea M. Leahy, writing for the panel, found that “people have a reasonable expectation of privacy that their cell phones will not be used as real-time tracking devices by law enforcement.” (File)

With its finding Wednesday that the Fourth Amendment requires a warrant to turn a cellphone into a tracking device, the Court of Special Appeals became the first appellate court at the state or federal level to address the constitutionality of police use of cell site simulators, known colloquially as “StingRay technology.”

“This opinion is impressive for its scope and its depth and its utter and complete rejection of the government’s arguments,” said Nathan Freed Wessler, staff attorney with the ACLU Speech, Privacy and Technology Project.

The nearly 75-page opinion, which affirmed a Baltimore City Circuit Court judge’s suppression of evidence, lays out the recent history of courts’ attempts to grapple with the privacy concerns of citizens as technological developments make it easier for law enforcement to glean information without their knowledge.

The unanimous three-judge panel sided with the lower court in a one-page per curiam order in early March and explained its reasoning this week.

“Prosecutors and police are on thin ice now in the state,” Wessler said. “They should be moving to limit the damage and the way they can do that is start disclosing. There is no question now that the secrecy is inappropriate and it should stop immediately.”

Judge Andrea M. Leahy, writing for the panel, found that “people have a reasonable expectation of privacy that their cell phones will not be used as real-time tracking devices by law enforcement” and the use of a cell site simulator, which gives police cellphone location information, requires a search warrant or a recognized exception.

At issue in the Baltimore city case was the use of a device called “Hailstorm” to help police locate Kerron Andrews, who was wanted for attempted murder. The device, which works by mimicking a cell tower and looking for a particular cellphone based on a serial number, gets the phone to transmit its location without the owner’s knowledge. Police found Andrews inside a private residence with the phone in his pocket.

Daniel Kobrin, an assistant public defender who represented Andrews on appeal, said that, as of Thursday afternoon Andrews was supposed to be released on bond for the remainder of the appeals process.

The Maryland Office of the Attorney General is still reviewing the case and no decision has been made on whether to seek review from the Court of Appeal, according to spokesman David Nitkin.

If the state ultimately loses its challenge, pursuant to Maryland law, it must dismiss the case against Andrews, Kobrin said.

A spokeswoman for the Baltimore City State’s Attorney’s Office did not respond to a request for comment.

Defense challenges

Challenges to the use of cell site simulators without warrants have been slowly making their way through state and federal courts for a couple of years, according to Wessler.

“There’s been a trickle of challenges and only now are they really hitting the appellate courts,” he said.

One of the difficulties for defense attorneys has been the way the technology is obliquely referenced in arrest reports and other discovery materials.

Police reports state the defendant was located but do not indicate how, or attribute the knowledge to a “confidential source,” Wessler said, which leads a reader to believe it was an informant and not “a sophisticated robot in the back of a police car.”

Kobrin said defense attorneys have figured out indicators that police are referring to cell site simulators, including leaps in time from sending a form to a cell service provider to get a cell tower location to locating the defendant with no explanation.

Attorneys needed to know to ask the right questions or request certain discovery documents, according to Wessler. But in the vast majority of cases, if witnesses were placed in a position where they would need to describe Hailstorm or similar technology, they could not: a non-disclosure agreement signed by Baltimore police with the FBI as a condition of purchasing the technology prevented law enforcement from disclosing information about cell site simulators, even in court filings and at hearings, according to the Court of Special Appeals opinion.

“We observe that such an extensive prohibition on disclosure of information to the court… prevents the court from exercising its fundamental duties under the Constitution,” Leahy wrote.

Wessler called the opinion a “withering critique of the excessive government secrecy” surrounding Hailstorm.

“Go sign whatever pieces of paper you want, but good luck if you try to use that to justify hiding information from courts,” he said.

Kobrin said he did not expect the opinion to address the non-disclosure agreement.

“I think that was an incredible thing for a court to tell the law enforcement community and I’ve very encouraged that our judiciary is willing to stand on the side of privacy like that,” he said.

Uncertain impact

Korbin said the case firmly established Andrews’ Fourth Amendment rights but more widespread implications are still uncertain.

Calling the ruling “a huge transparency win,” Kobrin said pending cases where attorneys learn or suspect the technology was used will be immediately impacted.

For completed cases, it will be a “thorny process” for defense attorneys, who are making efforts to review Baltimore city cases where cell site simulators were used and discussing post-conviction relief options with the city prosecutors and Office of the Public Defender.

“There is an effort underway,” he said.

Wessler said defense attorneys are still in a position where they have to “smoke out” the use of this technology.

“Even if police around the country started providing appropriate disclosure today, that still leaves thousands of cases in the past where they violated the Constitution,” he said.

Legislation likely

A bill to codify use of cell simulator technology, including warrant requirements, disclosure rules and third-party protections, was introduced in the House of Delegates this year but did not make it past the Judiciary Committee.

House Bill 904 was discussed at a hearing within days of the Court of Special Appeals’ per curiam order.

Kobrin, who testified at the hearing along with Wessler, said legislators wanted to wait for the court’s opinion.

“They weren’t going to outpace the court here,” he said.

Now, with the ruling in hand, there will most likely be a joint effort this summer to codify cell site simulator technology practices, he said.

Even though the court’s ruling established the principle that a warrant is required, Wessler said, there are other issues where legislation will be important, including requiring police departments to establish policies and mandating prompt deletion of bystander information when it is captured by the technology.

“There are so many points where more transparency is needed, starting when a department decides that they want to buy one of these devices,” he said.