Rigmaiden’s
arrest was the direct result of the FBI’s use of the Stingray, which has been
in use by federal agents since at least the mid 1990’s.[3]
The Stingray is a small device, installed in an unmarked van, which simulates a
legitimate cell phone tower to trick cell phones into connecting to it.[4]
The Stingray allows the government to route all network traffic in a given area
through a single device.[5]
According to Christopher Soghoian, technologist at the ACLU’s Speech Privacy
and Technology Project, the government uses the Stingray by driving through a
neighborhood and sending signals through the walls of homes to pick up cell
phone data.[6]
Once connected, the Stingray collects unique identifying information from cell
phones so that the FBI can triangulate and map the location of any cell phone
in the area in which the Stingray is being used.[7]
While the Stingray allows the FBI to target specific cell phones, it also
necessarily collects the data from the cell phones of innocent people who
happen to be in the area.[8]
The
Rigmaiden defense team argues that the evidence against Rigmaiden, collected as
a result of using the Stingray, should be suppressed because the government
used the device without a search warrant and in violation of Fourth Amendment
protections against unreasonable search and seizures. To get a search warrant, the government must
convince a judge that there is probable cause to believe the area in which the
government seeks to search contains evidence linking an alleged perpetrator to
a crime. Search warrants must be
narrowly tailored to areas in which the government believes the evidence is
likely to be found, as courts typically deem general search warrants as
violations of the Fourth Amendment.
Recently,
the ACLU of Northern California obtained a series of emails from the Department
of Justice demonstrating that federal agents in California have routinely used
the Stingray for surveillance while failing to disclose these tactics in
applications to federal magistrate judges for permission to conduct electronic
surveillance.[9]
Rather, the ACLU maintains the government mislead federal magistrate judges
into believing that the applications were for pen registers, or basic cell
phone surveillance methods that only record the numbers on incoming and
outgoing calls, and not the use of the more invasive Stingray technology to
record location information.[10]
In
Rigmaiden’s case, the government applied for a court order requesting that
Verizon, Rigmaiden’s wireless provider, help federal agents by tracing
Rigmaiden’s wireless broadband access and cell phone. But in addition to obtaining
data from Verizon, the government interpreted the court order as approval to
use the Stingray to detect the location of Rigmaiden’s cell phone within his
apartment complex. However, the government never asked the magistrate judge for
such permission.
The
government argues that the court order was effectively a search warrant
authorizing the use of the Stingray. But
the ACLU maintains that the order not only made no reference to using the
Stingray, it was directed at Verizon rather than the government.
The
Supreme Court has held that the government can use pen registers without
obtaining a search warrant. But Rigmaiden’s
defense team argues that pen registers and the Stingray are incomparable
because of the Stingray’s superior capabilities to
pinpoint a particular cell phone location. Consequently, the defense team has urged the
Arizona federal court to use the recent Supreme Court decision in United States v. Jones, prohibiting
police from attaching a GPS device to a vehicle without a search warrant, to
prevent the government from using the Stingray to track alleged suspects
without a warrant.[11]
There
is a significant constitutional question as to whether the use of Stingrays,
which automatically gather information from cell phones belonging to innocent
third parties, could ever be considered limited enough as to be in compliance
with the Fourth Amendment protection against unreasonable search and seizures. But regardless of the constitutional question,
the government should not be able to use the Stingray without a warrant. Despite the Justice Department’s narrow
reading of the Fourth Amendment, claiming that people do not have a reasonable
expectation of privacy over their cell phone location data,[12]
limits must be drawn to protect citizens’ privacy in light of emerging
technology.
Jared
Engelking
Blogger, Criminal Law Brief
Image Courtesy of http://www.flickr.com/photos/jonjon_2k8/
[3]
http://news.cnet.com/8301-13578_3-57576690-38/fbi-prepares-to-defend-stingray-cell-phone-tracking/
This is very interesting, and definitely a sticky situation, but ultimately, I believe the government has the authority to use the information gathered by Stingray in the court of law. If cellphone interceptors can be purchased by the general public in local electronic shops, and if recorded conversations from “wired” undercover agents and witnesses can be used as evidence, what makes Stingray’s information any different? While I do believe that it could be an invasion of privacy and there are countless other people having their conversations recorded as a result, as you mentioned, I feel like it is still admissible information; especially (though, bias) when thinking about the $4 million dollars this person stole. Definitely a tough situation to make a judgment call on.
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