The Long Arm of the Law Reaches Into Your Cellphone
Bob Goodlatte (R) represented Virginia’s 6th Congressional District, served as chairman of the House Judiciary Committee, and is senior policy adviser of the Washington, D.C.-based Project for Privacy and Surveillance Accountability.Alex Marthews is the national chair of Restore the Fourth, an advocacy organization dedicated to privacy, surveillance reform and the Fourth Amendment.
Even if you’ve done nothing wrong, the government may be tricking your cellphone into divulging your movements, while seeing who you’ve texted and called.
Since 1995, local and state governments, as well as federal agencies, have been using “cell site simulators,” commonly known by the genericized brand name “stingrays.” These portable devices collect data from the cellphones of anyone who happens to walk into range of its signals.
Stingrays work by mimicking cellphone towers, sending signals to trick phones in a targeted area into transmitting the locations and identifying information from bystanders. Stingrays represent one of the largest bulk data collection programs in the United States, operating at all levels of government.
According to a 2018 American Civil Liberties Union investigation, at least 75 agencies in 27 states and the District of Columbia owned stingrays, with the potential to compromise the privacy of hundreds of millions of Americans. When asked about stingrays, many law enforcement officials obfuscate. A police department in Florida admitted in emails to hiding its use of a stingray-type device. Often, the manufacturers of these devices, and sometimes the FBI, require police departments to sign non-disclosure agreements. Federal law enforcement will often push for dismissal of cases rather than reveal specifics about how these devices are used. In 2018, the ACLU reported that 14 federal agencies were known to utilize stingrays, including IRS, ICE and the FBI.
The decentralized nature of this technology makes investigation difficult. Hundreds of Freedom of Information Act requests would need to be filed to uncover the scope of their use – and even then, past experience suggests these requests would often be ignored.
Nationally, laws governing cell site simulators are a patchwork quilt. California law has public disclosure requirements. Maryland law requires a warrant to use a cell site simulator. But many states and cities lack clear laws. In 2015, the Department of Justice issued guidance that federal law enforcement agents should obtain a probable cause warrant before using a stingray, instead of the prior practice of using “pen register” or “trap and trace” orders that did not require probable cause. Federal courts, starting in 2016, have begun to exclude the use of stingray-derived evidence. However, it is still common for state and local police to not specify on their warrant applications that a cell site simulator will be used, resulting in judges approving warrants without fully appreciating of what will be searched or seized.
The federal government has had no reservations about using similar mass surveillance technologies for law enforcement purposes in the past. In 2020, the Trump administration bought access to a commercial database that maps the movements of millions of cellphones in America.
Most Americans believe our data should be protected from warrantless searches. The U.S. Supreme Court thought so too, ruling in an analogous 2018 case, Carpenter v. United States, that law enforcement must obtain a warrant to obtain a person’s historical location data.
Federal agencies are already learning to sidestep DOJ’s warrant requirement by routinely purchasing location data from data brokers. The extent to which state and local governments follow similar practices is not known. Without accountability and oversight, agencies could begin purchasing other datasets containing much more personal information than just our location history.
At the moment, two promising proposals would protect privacy rights against these threats. Sen. Ron Wyden (D-Ore.) has announced legislation, The Fourth Amendment Is Not for Sale Act, which would prohibit government agencies from purchasing bulk data containing personal information. As a senior member of the Senate Intelligence Committee, Wyden said that public knowledge on “shady data brokers” is only the “tip of the iceberg” of the data collection programs occurring on a daily basis, adding: “I don’t think Americans’ constitutional rights ought to vanish when the government uses a credit card instead of a court order.”
Rep. Ted Lieu (D-Calif.) and Wyden are crafting legislation to restrict the use of cell site simulators after the revelation that several government agencies conducted surveillance on individuals participating in last summer’s Black Lives Matter protests.
In addition to advancing these measures, Congress and the Biden administration should task the Department of Justice with supplementing their guidelines by surveying the usage of stingrays by states and municipalities, as well as the policies that govern their use.
The government is collecting sensitive personal information without a warrant and often without an apparent reason. The American people deserve accountability on how the government is watching us and what it is doing with this knowledge.
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