Rise of 'Stingray' Cell-Phone Trackers Prompt FCC Probe - Technologist
Technologist - The FindLaw Legal Technology Blog

Rise of 'Stingray' Cell-Phone Trackers Prompt FCC Probe

The "Stingray" is a neat little device that fools a cell phone into connecting to it as though it were a cellular phone tower. Once connected, the Stingray can record the device's unique ID, monitor the device's traffic, and even triangulate the cell phone's position.

It's also questionably legal. In June, unsealed documents revealed that Florida police were caught lying about using information from a Stingray to obtain warrants. As Ars Technica reports, officers were instructed to "refer to the assistance as 'received information from a confidential source regarding the location of the suspect.'" They were also told never to refer to the Stingray in police documents and to re-submit warrant affidavits that referred to them, according to the ACLU.

Lies notwithstanding, we still don't know any more about Stingrays, and now the FCC wants to get involved.

Stonewall Jackson

Maybe they'll have to. The ACLU has been trying to obtain more information about how Stingrays work and how they're used, but to no avail. First, the Tallahassee Police Department stonewalled on the ground that the manufacturer's non-disclosure agreement prevented them from even acknowledging that they used the Stingray device, reported Ars Technica.

Then, after learning about a meeting at which the ACLU would inspect department records relating to the Stingray, the U.S. Marshals Service stepped in, deputized Detective Michael Jackson (the officer responsible for the department's Stingray records), and directed him not to let the ACLU see them.

Concerned About Whom?

Ars correctly points out that, while the FCC seems concerned about criminals' exploitation of the security holes that allow the Stingray to work, there should be more discussion about law enforcement using such devices. Police had apparently avoided invoking the Stingray in warrant applications because we don't know yet whether they're constitutional. Certainly they'd be allowed if a warrant were issued for their use, but they never have been; not really. Florida police actions seem most akin to wiretapping (defined as intentionally intercepting communications), and for that, they'd be subject to the standards of the Wiretap Act.

It's almost certainly the case that we have a reasonable expectation of privacy in our cell phone conversations; that is, a reasonable expectation that when we call someone or send a text, a secret government box somewhere isn't recording our calls or our location. This appears to be what police were afraid of, and why they tried to conceal the Stingray's use.

Really, this amounts to hoping that it's easier to ask forgiveness than get permission. Except, now that the Stingray is out of the bag, defendants who were convicted thanks to warrants obtained with Stingrays may get new trials, as happens when it turns out later evidence was improperly obtained. The rest of us will have to wait until a court weighs in before we're sure there's no one breathing on the other end of the radio signal.

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