Court Scolds Maryland Cops for Stingray Use, Issues Landmark Decision on Surveillance

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In what civil liberties and privacy advocates are calling a landmark decision, Maryland’s second-highest court has handed down the first appellate opinion in the country affirming that police must obtain a probable cause warrant to track cell phones.

The Maryland Court of Special Appeals issued the opinion in a ruling that rebuked Baltimore Police for failing to disclose that they had used a device called a cell site simulator, often referred to as a “stingray,” to locate an attempted murder suspect, The Baltimore Sun reports.

In court testimony last April, a Baltimore detective revealed that the Baltimore Police Department had used Stingrays more than 4,300 times since 2007, repeatedly failing to notify courts of their use in criminal cases.

The court rejected the state of Maryland’s argument that anyone turning on a phone was “voluntarily” sharing their whereabouts with the police. And the 73-page opinion also harshly scolded Baltimore police for trying to conceal their use of Stingrays from the court.

The panel of judges wrote:

We conclude that people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement, and — recognizing that the Fourth Amendment protects people and not simply areas — that people have an objectively reasonable expectation of privacy in real-time cell phone location information.

Stingrays are surveillance devices that act as a fake cell phone tower. They essentially allow the government to electronically search large areas for a particular cell phone’s signal – gathering data on potentially thousands of innocent people along the way.

As if this isn’t invasive enough, police have attempted to use them while avoiding many of the traditional limitations set forth in the Constitution, like individualized warrants.

Experts say that the impact of the appellate court’s ruling will be far-reaching, since it is the first court of its kind in the country to rule on whether police must disclose their intent to a judge obtain a warrant to use devices like Stingrays.

Dan Kobrin, an attorney with the public defender’s office who argued the case before the court, said the impact is “enormous” and “will hopefully curb abuse of this device and bring it out into the sunlight.”

Nathan Freed Wessler, a staff attorney who specializes in technology and privacy with the American Civil Liberties Union, said of the decision:

The court’s opinion is a resounding defense of Fourth Amendment rights in the digital age. The court’s withering rebuke of secret and warrantless use of invasive cell phone tracking technology shows why it is so important for these kinds of privacy invasions to be subjected to judicial review.

Other courts will be able to look to this opinion as they address rampant use of cell site simulators by police departments across the country.

In 2014, awareness of the use of stingray technology grew when defense attorneys in Baltimore began to suspect and challenge the use of the device. In one case, a detective took the stand and refused to discuss the technology, and was nearly held in contempt by a judge.

Last April, The Baltimore Sun published a non-disclosure agreement that the Baltimore Police Department signed in 2011 with the FBI and Harris Corporation, a leading manufacturer of Stingrays, in which local authorities agreed never to disclose use of a stingray device.

The agreement required the department to conceal its use of Stingrays “during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure … or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.”

Police departments across the country have been signing similar agreements, and prosecutors have even dropped criminal cases to avoid facing questions about Stingrays, The Intercept reports.

In 2014, Harris Corporation went so far as to petition the Federal Communications Commission to block a FOIA request for user manuals for some of the company’s products.

While the Maryland court’s decision is a positive one that is a step in the right direction, Stingray devices are hardly the only surveillance method cops use to track us. In December, The Intercept published The Secret Surveillance Catalogue, a “secret, internal U.S. government catalogue of dozens of cellphone surveillance devices used by the military and by intelligence agencies. The document, thick with previously undisclosed information, also offers rare insight into the spying capabilities of federal law enforcement and local police inside the United States.”

Police departments also use another form of surveillance technology that hasn’t received much publicity – yet: automatic license plate readers. (I didn’t know this existed until I was pulled over by a Maryland state trooper for driving on a “suspended registration.” My offense? Failing to get a car emissions test. I’d moved to the state a year prior and had no idea I even needed such a thing.)

Automatic license plate readers are mounted on police cars or on objects like road signs and bridges. They use small high-speed cameras to photograph thousands of plates per minute.

The information captured by the readers – including the license plate number, and the date, time, and location of every scan – is collected and sometimes pooled into regional sharing systems. As a result, enormous databases of innocent motorists’ location information are growing rapidly. This information is often retained for years or even indefinitely, with few or no restrictions to protect privacy rights.

Law enforcement agencies claim that surveillance devices help them keep us safe, but the ACLU says the gadgets are more commonly used to solve simple crimes.

They also claim that the devices are intended to prevent terrorist attacks (in fact, many departments have bought them under the guise of that purpose), but to date, there hasn’t been a single documented instance of that actually happening.

No, the goal is control. It always has been, and it always will be.

“Bathtub falls and police officers kill more Americans than terrorism, yet we’ve been asked to sacrifice our most sacred rights for fear of falling victim to it.” – Edward Snowden

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