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Google Play Store Yes support. OTA Update Yes support. The federal government does not reveal which departments own or lease the devices; which departments are actively deploying them and how often; what, if any, guidelines govern them; or what mechanisms, if any, are in place to ensure the devices are used properly. In October , following several remarkable revelations regarding stingray surveillance, both the Department of Homeland Security and the Department of Justice publicly outlined their stingray policies for the first time.
They do not carry the force of law, and enforcement of these guidelines is left entirely up to the executive agencies deploying the devices. These guidelines also appear to apply only to devices being used by the federal government and have no bearing on the use of stingray devices that are in the hands of state and local police, who remain free to set up their own guidelines and accountability policies. The judicial and legislative branches, tasked by our system with checking the power of the executive branch, have important roles to play in limiting the abuses of stingray surveillance and thus far have failed to do so.
Understanding the issues raised by warrantless stingray surveillance requires some background on the Supreme Court precedents that inform our current Fourth Amendment jurisprudence. In the case Katz v. Miller 47 and Smith v. By the early s, the Supreme Court was wrestling with advances in police technology that allowed officers to peer through walls and into the privacy of the home.
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In , the Court decided Kyllo v. A decade later, some members of the Court had begun to question the applicability of the expectation of privacy test in light of modern technology. In the Supreme Court decided U. More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.
California :. Federal and state courts have not yet had much opportunity to apply these principles. Between the explicit provisions of the FBI nondisclosure agreement and federal encouragement to keep relevant information from courts, most judges have not had occasion to analyze the legal issues raised by stingray use. Despite this pervasive secrecy regime, in several criminal cases vigilant defense attorneys who questioned how the police found their clients stumbled onto stingray investigations.
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Why was he stopped? He can answer the question. Why did you stop him? Step down, thank you. It stands to reason, then, that the vast majority of criminal cases in which stingray evidence is used, like the vast majority of criminal cases generally, are pled out before going to trial and often before defense counsel has an opportunity to raise such questions. These terms have traditional meanings in the legal system that convey none of the novelty or magnitude of stingray surveillance. Judges, in other words, are sometimes authorizing stingray devices without knowing it.
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The problem has become so pervasive that defense attorney organizations are now offering explicit guidance to defense lawyers in order to ferret out stingray uses by police in criminal proceedings. As more has been revealed and the breadth of stingray use has become more widely known, it is fair to anticipate that the amount of judicial analysis will increase. A few courts have been able to weigh in on the constitutional implications of warrantless stingray use already.
In that case, defendant Kerron Andrews was suspected of shooting three people.
The few instances of courts assessing the legality of stingray use have come to different conclusions, citing different precedents, and it could be years before these splits in Fourth Amendment interpretations are resolved. Indeed, stingrays do collect data from cell phone users, but ostensibly the primary use of that data is to triangulate the precise location of the phone rather than to analyze the content of the data itself.
This tracking capability inevitably includes the inside of homes and other areas traditionally considered beyond the reach of warrantless searches. In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. At the federal level, Rep. The Stingray Protection Act goes well beyond merely suppressing tainted evidence. Additionally, several states have taken steps to curb warrantless stingray use.
These efforts affirm the traditional constitutional responsibility of state governments for law enforcement. State legislatures have the power to correct many of the problems raised by secretive stingray use, whether through forbidding state and local law enforcement to participate in federal militarization or transfer programs or imposing strict requirements on the use of surveillance devices. Technological advancements in law enforcement are inevitable. But the efforts at secrecy, the lack of accountability, and the twisted incentives created by federal meddling in state and local law enforcement beg for reform.
At the executive level, federal and state agencies should be forthright and transparent in their possession and use of stingray surveillance devices, both with the relevant courts and the general public. Even if one accepts the argument that extreme secrecy produced an advantage for law enforcement over terrorists and drug cartels, that advantage has long since evaporated as criminal syndicates have altered their methods and the veil of secrecy has been stripped from the technology.
At the judicial level, Fourth Amendment jurisprudence governing the privacy protections of cell phone data is in desperate need of Supreme Court analysis. Lower courts seem confused about which analytical framework to apply to stingray cases and how the technology should be assessed within those frameworks. Courts at all levels should reject state secrecy arguments that deny judges and defense teams access to information about stingray capabilities and usage. The use of federal security grants to equip state and local law enforcement, the use of federal nondisclosure agreements to hide the behavior of state and local agents from judicial and legislative oversight, and the inevitable twisting of law enforcement priorities that accompanies such incentive programs are all reasons for caution in allowing agencies to participate in these federal programs.
Stingray surveillance raises many novel political and legal issues, yet cell phone trackers are only the vanguard.
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For more detail on the technical capabilities of Stingray devices, see Stephanie K. United States v. New York Civil Liberties Union v. Joel Handley et al. Even when the funding sources are local, as in the case of civil forfeiture funds, the agencies still must coordinate their acquisition and use of stingray equipment with the federal government. See Testimony of Seth M. House of Representatives, October 21, Hodai v. Justin Brown and Kasha M.
As former U. Arizona State of Maryland v. Andrews Court of Special Appeals of Maryland, No.
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Term Filed March 30, How Do Stingrays Work? One provision of the memo states:. A Lack of Accountability The complete lack of transparency regarding government use of stingray technology guarantees that bad actors are not being held accountable and that guidelines, where they exist at all, are not always being followed. Legal Status of Warrantless Stingray Surveillance Understanding the issues raised by warrantless stingray surveillance requires some background on the Supreme Court precedents that inform our current Fourth Amendment jurisprudence. Conclusion Technological advancements in law enforcement are inevitable.
Notes: 1. See Katz v.
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United States , U. See Smith v. Maryland , U. Katz v. United States, U. Miller, U. Smith v.