The use of clandestine means to obtain cell phone information has been dealt a blow by local judges in the U.S. state of Washington. An unusual, more stringent standard will hereafter be required regarding the use of the controversial surveillance device called a Stingray. This cell-tower mimicking device is affixed to a mobile vehicle to extract information on suspects in buildings. After a Tacoma newspaper printed a story in August 2014 outlining how the devices were used locally, the county’s 22 Superior Court judges now require specific language in warrant applications that will detail the nature of the police use.
This came to light in the August-September period of 2014. Back in June we reported in this space about Stingray operations across the US.
In the past, all over the nation, law enforcement officials would go to court asking a judge for a “pen register, trap and trace” order which allowed police to obtain a caller’s information in the pre-cellphone era. Now the Stingray device allows cops to directly gather data. Trouble is, that it also can be used to intercept calls and text messages and will scoop up similar information from nearby phones, not just the target phone. So, innocent citizens who are not targets of an investigation are at risk.
This development is noteworthy as it comes on the heels of our reporting on another furtive practice by federal law enforcement officials in which the feds are manning Cessna-type aircraft to glean information on cellphones from the air. This also is being done purportedly without proper judicial knowledge or oversight, and it begins to raise the specter of even further abuses and more intrusive behavior by law enforcement agencies. In these airborne episodes the US Marshals Service was the lead agency.
At least one privacy-minded former judge, Brian Owsley, now a law professor in Texas, praised the Pierce County decision saying,
“I think that the argument that judges need not know about the aspects of cell site simulators before they sign off on them is wrong. It runs counter to the Fourth Amendment. In order for a judge to properly assess whether there are any Fourth Amendment concerns, a judge must know exactly what he or she is considering authorizing. Otherwise, a judge cannot properly determine whether there is probable cause consistent with the Constitution.”
The hope here is that the recent action by the local judges in Washington is mirrored by other jurists around the country. It is encouraging that the freedom of the press, as exhibited by my reporting and that of myriad other journalists is being noticed and acted upon by the courts. The message is succinctly summed up by Owsley additional comment,
“I think judges should be expecting law enforcement to be candid with the court about how they are using the devices (Stingrays) and what they are doing with innocent people’s data.”