Remember Carnivore—the FBI software that was designed to scan all email traffic on the net? Enter Stingray, a system for tracking people by listening to the signals sent by their cellphones (WSJ article, Techdirt article). The system works by pretending to be a cell phone tower, communicating with the phone and providing signal strength information. The vehicle (Stingray units are often mounted in vehicles) then moves and measures the signal strength one or more times (‘triangulation‘) and determines the location of the device. The phone only has to be turned on (i.e. you don’t have to be making a call or sending a text, or browsing the internet).
Setting aside the clear problem of deleting evidence before trial without judicial review (see the linked WSJ article), there are several issues that need to be examined with regard to this, and several possible angles from which to approach it. We have questions of what kind of warrant is need to do this (if any), what it means to be ‘secure’ in your home, what ‘home’ means, how all of this applies to electronic transmissions and the like. Here are some salient points about the current state of affairs:
- In general, under US law (FCC regulations), any unencrypted radio communication may be listened to by any person, so long as they do not re-transmit or otherwise communicate the content of that transmission in an illegal way. For example, listening to police band radio is perfectly legal, but using the information you gathered from that to help someone avoid the police is not. Note that GSM speech is encoded, but by nature of the negotiated shared secrets, the initial contact is not encrypted and thus is, in effect, a ‘public’ broadcast in the clear.
- In general, if something in your home is visible to a casual observer from the street, you have neither a privacy nor 4th Amendment protection relating to searches. In other words, if you have your drapes open and the marijuana plants are able to be seen from the sidewalk, your claim that the police didn’t have a warrant will fail.
- At present, the courts insist that ‘wiretapping’ (i.e. listening to a conversation) requires a warrant (though secret FISA warrants may be used) when the parties are both in the Untied States (the rules for tapping international calls are somewhat less strict, and given the Patriot Act and FISA, effectively non-existent).
- Police may conduct searches based on probable cause when there is imminent likelihood that evidence will be destroyed if they try to get a warrant (this is a highly debated area of jurisprudence and significant cases are working their way through the courts at this time).
- Intentional public acts (or acts that the person should have known would be public) are not subject to warrants. For example, it would not be a violation of the 4th Amendment for the police to record the plate numbers of every car that passes a certain point on a public road, or to enter a home to search for a suspect when they have a warrant for the person’s arrest and their car is parked in the driveway.
- Historically, the police have not been empowered to require individuals who are otherwise obeying the law provide identification (though they are able to do so in certain situations, such as demanding a driving license if you are driving your car and are pulled over). This has been under assault for years, and the courts have provided the police far more leeway in making such demands.
What does all of this mean? It’s an open question how the courts will come down on this. I would say that more than likely, based on current jurisprudence, the court will state that such actions by the government are not violations of the 4th Amendment. Fundamentally, since the phone is transmitting control signals to any and all base stations (this is how a cellular or mobile phone works), intercepting such a broadcast transmission is not a violation of FCC regulations. A technical defense to this might be made if the phone was not set to roam (i.e. configured to only talk to cellular base stations from your specific carrier), though I don’t know how well this would hold up, since you still aren’t encrypting the data. In addition, since the LEOs are not listening to your call (only the control signals), wiretapping laws (as they currently exist) do not come into play, and the Supreme Court has held that listening to the control signals on telephone calls does not require a warrant, and Congress provided that they only need an ex-parte (i.e. one-sided, where the other side does not have to be informed) court order (this originally related to PEN registers for telephone calls, but the same idea applies).
All of which is to say, that consistent with current law and court rulings, Stingray is perfectly OK. (Note though, that given that the government was allowed to delete the evidence (per the WSJ article) prior to trial, the case might be dismissed without ever reaching the merits.)
All of the above aside (including as well all the search and seizure rulings since Mapp v. Ohio), what kind of protection ought the 4th Amendment provide in such cases? Is what is going on good public policy? And if it’s allowed, who is supposed to watch over it (you know I had to throw Quis Custodiet Ipsos Custodes into this, didn’t you? 
) First, here’s the text of the 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
First off, the above does not limit itself to actual ‘paper’ any more than ‘Freedom of the Press’ limits itself to manually run screw press used by Benjamin Franklin. In other words, the Constitution is not limited to or by technology. We apply the general principle described without reference to the actual devices used. The 4th Amendment has been applied to telephones, computers, and all other manner of technology. Cellular phones should not be a special case, and the 4th Amendment protections apply.
That said, the cellular phone is broadcasting and is configured to respond either to any cellular base station. One can select (on many phones) whether or not to limit the communication to the base stations provided by the carrier or to any compatible base station (i.e. roaming). The question is, should this communication be considered ‘public’ in the same way as an unencrypted radio or television transmission? I would say not in this case, for the specific reason that a two-way communication is being established (per the article, the Stingray device ‘pings’ the phone). This is not simply passive listening to an otherwise public communication, but an intentional invasive act. That must require a warrant.
What if Stingray were purely passive? If that is the case, then one could argue that it is legitimate for the government to look at the signal, since it is being broadcast over the air (and not contained purely inside one’s home or place of business. It becomes a public act, no different than walking down your street, driving your car or attending a hockey game. In other words, if you make yourself visible in public, via technology or otherwise, your expectation and right to privacy are limited or non-existent. There is no legitimate complaint about loss of liberty if the police see you driving down the street and stop you for an outstanding warrant based on checking your license plate.
The question is, though, do we want the government to have this power? Do we want to live in a surveillance society where every public act is monitored and tracked? And who watches the watchers and ensures that they stay in line? I think the answer to the first two is no, and the third is a serious issue. In the internet age, nearly everything we do is public (in the sense that it is disclosed to third parties voluntarily). We post to Facebook, Google+ and the like. We carry cellphones and even check-in manually with FourSquare or similar location services). We share these with ‘friends’ but again, they are voluntarily disclosed the third parties, which effectively makes them “public” (at least as interpreted by the courts). I would argue that this is bad public policy and has a chilling effect on the public at large.
What do we need to do to fix this? Here are some basic steps:
- Eliminate the use of secret warrants (e.g. FISA warrants) and ex-parte warrants for search/seizure activities
- Demand that the Courts act impartially and require the government to defend their warrant applications
- Change the legal understanding of ‘public’ to mean things which are intentionally disclosed to the general public, not things which are disclosed to third-parties via social networks, cellular phone control signals, telephone dialers and the like.
- Ensure that the activities of law enforcement are monitored and require justification for actions which violate privacy without proper justification
Will the above make things harder for law enforcement? Yes. And that’s a good thing. As Patrick Henry stated:
The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.
Missing this point misses the entire point of the US Constitution and the Revolution which preceded it. We have come to a point where the default is that the government may do almost anything without limitation, and many people accept this notion. Some of those people are misguided, and need only to be taught the true intent of the Founders. Others disagree with the very intent-it is these who are dangerous and must be fought at every turn. They believe that the government should control the people. They are enemies of liberty who often disguise themselves as proponents of liberty, while at every turn seeking to limit it. They are wolves in sheep’s clothing. George Washington neatly summed this up when he said:
Government is not reason; it is not eloquence. It is force. And force, like fire, is a dangerous servant and a fearful master.
All those who love liberty should resist government encroachment of their rights. The technology that is empowering us is being used against us. And we must put a stop to it. Right now. If we wait too long, bloodshed will be required to seize back our liberties. There is still time to do it peacefully, but we must stand together to resist these actions by the government and we must do it now.
About Stephen Adams