Md. delegates’ bills would have police get warrants for cellphone tracking

ANNAPOLIS – Two Democratic delegates say they will not wait to see if the U.S. Supreme Court will rule that police need search warrants to track criminal suspects based on their cellphone use.

Del. Charles E. Sydnor III said he will introduce a bill this session requiring police officers to get a judge-issued warrant before setting up a simulated cell tower to track a suspect’s movements. Del. David Moon’s planned proposal, meanwhile, would require police to get a search warrant before a cellphone service provider could surrender the tower records of a suspect to determine where that person was before, during or after a crime was committed.

The Supreme Court has yet to consider a case involving simulated cell towers, colloquially known as StingRays; the justices are weighing whether a warrant based on probable cause — rather than a mere disclosure order — is necessary to get cell tower records.

A decision in that case – Timothy Carpenter v. United States, No. 16-402 — is expected by this summer.

A warrant requirement is needed “to ensure our citizens privacy rights are protected,” Sydnor, of Baltimore County, said Thursday. “There need to be some parameters.”

Moon voiced concern that technology is moving apace while privacy laws and court decisions regarding the constitutionality of high-tech surveillance are lagging.

“We’re in a little bit of cat and mouse,” said Moon, of Montgomery County.

The delegates commented as the House Judiciary Committee, on which they sit, heard criminal law professor David Gray testify that cellphone users are vulnerable to police surveillance in the absence of a warrant requirement.

“We all carry a tracking device in our pockets,” said Gray, of the University of Maryland Francis King Carey School of Law. “It’s constantly pinging every tower in the area.”

Under Supreme Court precedent, police do not need a search warrant to get phone use data from a service provider, as the justices have held that individuals have no reasonable expectation of privacy in information they share with a “third party,” Gray said.

The General Assembly, however, could enact a law imposing a warrant requirement, under which police officers would need to show a judge they have probable cause to believe criminal activity was afoot and information relating to the crime would be discovered via tracking a specific individual’s cellphone, Gray added.

Such information about people’s whereabouts should not be “virtually available to law enforcement just at the asking” of a cellphone service provider, Gray said. “It really does fall to this legislative body to strike the appropriate balance.”