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Warrantless Stingray Surveillance Deemed Unconstitutional, Proving Cops are Breaking the Law

Published: March 7, 2016
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By Claire Bernish

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Thanks to the Maryland Court of Special Appeals, the warrantless use of cell-site simulators, known as Stingrays, is now considered a violation of the Fourth Amendment.

“Police should now be on notice,” said staff attorney Nate Wessler of the ACLU’s Speech, Privacy, and Technology Project, as The Intercept reported. “Accurately explain your surveillance activities to a judge and get a warrant, or risk your evidence being thrown out.”

This potentially precedent-setting decision upheld an earlier ruling by Baltimore Circuit Judge Kendra Ausby. According toThe Intercept, “the trial court had suppressed evidence obtained by the warrantless use of a Stingray — the first time any court in the nation had done so.”

In a separate case before the courts in April last year, the revelation by a Baltimore police detective that the department had used Stingrays 4,300 times in eight years alarmed privacy-rights advocates around the country.

Wednesday’s ruling concerns a suspect in a 2014 shooting, Kerron Andrews, whom police needed to locate in order to effect an arrest. A judge granted police a “pen register” application — which isn’t a warrant, and doesn’t require probable cause — to gather information from Andrews’ wireless provider.

Instead of following through with the wireless service provider, police used “Hailstorm” — a high-tech version of Stingray. “This is a very expensive and very invasive technology developed for military use, now on the streets of America,” Wessler stated in April 2015.

Police repeatedly failed to inform the judge of their change in strategy to locate Andrews, but eventually had to reveal the use of Hailstorm in court — evidence the trial court threw out. Maryland Attorney General Brian E. Frosh argued the mereact of turning on a cell phone grants consent to be tracked by police — a position almost certain to be rejected as part of the summary decision in this case.

Department of Justice guidelines requiring warrants to use cell-site simulators only pertain to seven agencies — and as The Intercept noted, state and local police are not among them.

In November, The Free Thought Project reported the alarming discovery by the ACLU, after their lengthy battle for the release of pertinent documents, that Stingrays “may be capable of intercepting the contents of communications.”

On Tuesday, a House Oversight Committee hearing on Geolocation Technology and Privacy for a proposed bill attempted to reckon continued technological advances with the rights of people to maintain their privacy. The bill in question would require all police departments to obtain warrants — not the nebulous and comparatively flimsier pen register applications — prior to employing Stingrays.

Committee Chairman Jason Chaffetz summarized,

Just because it’s easier in 2016 for law enforcement to track our location and learn intimate details about our lives, it doesn’t mean those details are somehow less worthy of Constitutional protection. 

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