ANNAPOLIS – Legislation that would require police to spell out for a judge where they plan to use cell-site-simulation technology to track a criminal suspect’s movements drew fire Tuesday from a chief county prosecutor who called the provision too restrictive on law enforcement, as well as unnecessary due to existing court oversight of its use.
“The criminals in this state do not recognize boundaries,” Baltimore County State’s Attorney Scott D. Shellenberger told the Senate Judicial Proceedings Committee.
He added that police currently need court orders based on probable cause before employing the technology, except in an emergency situation.
“If we do not do this right, we get thrown out of court,” Shellenberger said.
The prosecutor delivered his comments as the committee considers Senate Bill 878, which would require police seeking a court order to use the technology to name the suspect, if known; the geographic area to be covered by the cell-simulator device; and the procedures to be used to protect the privacy of innocent individuals whose location might also be tracked by the technology.
Critics of the technology – commonly known by a brand name, StingRay – have voiced concern that the police surveillance, if left unchecked, would violate the Fourth Amendment right of people to be free from unreasonable searches.
Sen. Delores G. Kelley, the measure’s chief sponsor, said the legislation is necessary because “the Fourth Amendment rights of the public are being secretly violated” by the technology’s use. The equipment incidentally tracks not only the people named as targets but anyone using a cellphone within range of the simulation device, resulting in an “unknown invasion of their privacy rights,” added Kelley, D-Baltimore County and the committee’s vice chair.
David Rocah, an attorney with the American Civil Liberties Union of Maryland said the simulators are “inherently a mass surveillance tool” that collects tracking information on targets and “innocent third parties,” Rocah told the committee.
The legislation would require police with court authorization to use the technology to take all necessary steps to limit the collection of data to the suspect and permanently delete within 48 hours information gleaned about individuals not named in the court order. Police would also be required to delete all collected information within 30 days if probable cause no longer exists to support the belief that the tracking information linked a suspect to a crime.
Shellenberger said the provisions are unnecessary because police are already deleting information gleaned from non-suspects.
“We always dump the other information,” he added. “We are only going after the targeted one.”
Shellenberger said privacy rights are not violated because the technology provides only location information and does not reveal the messages, photos or other data contained on individual phones.
Telephone numbers are also not collected by the technology because the system tracks a phone’s unique identifier number – essentially an electronic serial number – which the police must collect from service providers, he added.
Shellenberger did speak approvingly, however, of a provision of SB 878 allowing police to use a cell-site simulator without a court order in the event of an exigent circumstance, such as a crime victim locked inside a car trunk.
“It (the technology) is not only used to find defendants,” Shellenberger said. “It’s used to find victims.”
Under the provision, police have 48 hours after collecting tracking information in an exigent circumstance to provide an affidavit to the court explaining the emergency situation and to get a judge’s post-event approval. If the judge denies the approval request, such as by finding the alleged exigency insufficient, the evidence derived from the use of the technology would be inadmissible in court.
“I always have to report to the court,” Shellenberger said. “The court can suppress the evidence. There are checks and balances on this all the way.”
The bill is cross-filed in the House of Delegates. Del. Charles E. Sydnor III, D-Baltimore County, is chief sponsor of House Bill 917.