Nearly a year to the day since we reported on how local law enforcement attempts to deceive judges about the notorious use of cellphone network simulating devices called stingrays ,opposition to the odious practice is sought to be codified in legislative action in the US state of California. Over the course of the year we have followed with interest the stingray saga, the public’s ire and the judiciary’s bewilderment over its employment.
In response to the growing clamor and resultant threat to privacy by the unauthorized, furtive use of stingrays, initial efforts to thwart rampant abuses of the technology have begun. In responding to much needed laws to rein in invasions of digital privacy, a California measure that would require a warrant to access all kinds of digital material passed its first hurdle, and is making its way through the legislative process.
Among the sweeping requirements to enhance digital privacy, the bill importantly imposes a warrant requirement for police to access the type of digital data produced by or contained within a device or service. Implicitly this would apply to the use of stingrays, which can intercept calls and text messages from the nearby phones of innocent citizens even as it targets information from a suspect’s phone.
If the legislation, the California Electronic Communications Privacy Act (CalECPA) passes the California State Senate and State Assembly, and is signed by the governor, not only would it mark a milestone in the fight against law enforcement abuses, but would put in compliance with an important US Supreme Court decision. In June, 2014, the Supreme Court ruled unanimously in Riley v. California that law enforcement officials must obtain warrants before searching the contents of an arrestee’s phone.
In the absence of legislation, law enforcement agencies have plied the practice of stingrays with impunity, often masking their use from judges with dodgy requests for warrants seeking information about suspects. In most instances, judges signed off on requests without knowing that stingrays would be employed to obtain the information. Moreover, when pressed for details about the stingray technology, police would fall back on FBI prepared boiler-plate responses aimed to obfuscate rather than educate.
Last week we reported a situation regarding stingrays in a New York county, which seemed to step up the pace of protests by judicial entities in the State of Washington and the city of Baltimore. Uniformly, judges complained that they were misled by law enforcement warrant requests, and were unaware of potential breaches of civilian’s civil liberties. As late as last week, the Anaheim (CA) Police Department continued to be cagey in its reply regarding the use of stingrays, producing a version of a letter that had been prewritten by the FBI in previous attempts to mask disclosure of the surveillance devices.
The American Civil Liberties Union (ACLU) applauds the potential measure, pointing out that in the US state with the largest and most diverse economy, consumer confidence in products like technology is of paramount importance, and that any action that would adversely undermine this confidence (such as surreptitious abuses of technology by law enforcement) is counterproductive.
“Consumers are increasingly concerned about warrantless government access to their digital information and for good reason. While technology has advanced exponentially, California private law has remained largely unchanged. Law enforcement is increasingly taking advantage of outdated privacy laws to turn mobile phones into tracking devices and to access e-mails, digital documents, and text messages without proper judicial oversight.”
It goes without saying that police don’t like the proposed legislation, and they have trotted out the time-worn arguments against being shackled from unbridled use of the surveillance technology. The California District Attorneys Association (CDAA) said the bill would subvert their efforts to fight children’s exploitation, specifically child pornography.
This effort echoes previous attempts by the FBI director, James Comey, to play on sympathies by referring to the importance of the new surveillance technology in solving kidnapping. Both illustrations are obviously cited to elicit the maximum sympathy to their cases. National spy agencies, similarly, will tout national security as a justification for abrogating liberties.
But fighting crime can’t be at the expense of personal liberty, and the long view must be taken to preserve these freedoms for the common good. We know all too well from history that the wall of privacy is dismantled a brick at a time, before resulting in the demise of freedom. Maybe if this measure becomes law in California it will serve as a model to be adopted in other locals to ensure that privacy remains paramount.