Friday, April 5, 2013

Cell Phone Tracking: “Hello… is this Uncle Sam?”

On March 28, 2013, an Arizona federal court heard arguments regarding the admissibility of incriminating evidence collected by the FBI using a sophisticated cell phone tracking device, the “Stingray,” in the case of Daniel Rigmaiden.[1] In 2008, Daniel Rigmaiden was arrested for his alleged involvement in organizing a multi-state operation to defraud the IRS.  Raigmaiden and his conspirators allegedly used approximately 175 different IP addresses to file over 1,900 fraudulent tax returns, and made over $4 million in the process.[2]

Rigmaiden’s arrest was the direct result of the FBI’s use of the Stingray, which has been in use by federal agents since at least the mid 1990’s.[3]The Stingray is a small device, installed in an unmarked van, which simulates a legitimate cell phone tower to trick cell phones into connecting to it.[4]The Stingray allows the government to route all network traffic in a given area through a single device.[5]According to Christopher Soghoian, technologist at the ACLU’s Speech Privacy and Technology Project, the government uses the Stingray by driving through a neighborhood and sending signals through the walls of homes to pick up cell phone data.[6]Once connected, the Stingray collects unique identifying information from cell phones so that the FBI can triangulate and map the location of any cell phone in the area in which the Stingray is being used.[7]While the Stingray allows the FBI to target specific cell phones, it also necessarily collects the data from the cell phones of innocent people who happen to be in the area.[8]

The Rigmaiden defense team argues that the evidence against Rigmaiden, collected as a result of using the Stingray, should be suppressed because the government used the device without a search warrant and in violation of Fourth Amendment protections against unreasonable search and seizures.  To get a search warrant, the government must convince a judge that there is probable cause to believe the area in which the government seeks to search contains evidence linking an alleged perpetrator to a crime.  Search warrants must be narrowly tailored to areas in which the government believes the evidence is likely to be found, as courts typically deem general search warrants as violations of the Fourth Amendment.

Recently, the ACLU of Northern California obtained a series of emails from the Department of Justice demonstrating that federal agents in California have routinely used the Stingray for surveillance while failing to disclose these tactics in applications to federal magistrate judges for permission to conduct electronic surveillance.[9]Rather, the ACLU maintains the government mislead federal magistrate judges into believing that the applications were for pen registers, or basic cell phone surveillance methods that only record the numbers on incoming and outgoing calls, and not the use of the more invasive Stingray technology to record location information.[10]

In Rigmaiden’s case, the government applied for a court order requesting that Verizon, Rigmaiden’s wireless provider, help federal agents by tracing Rigmaiden’s wireless broadband access and cell phone. But in addition to obtaining data from Verizon, the government interpreted the court order as approval to use the Stingray to detect the location of Rigmaiden’s cell phone within his apartment complex. However, the government never asked the magistrate judge for such permission.

The government argues that the court order was effectively a search warrant authorizing the use of the Stingray.  But the ACLU maintains that the order not only made no reference to using the Stingray, it was directed at Verizon rather than the government.

The Supreme Court has held that the government can use pen registers without obtaining a search warrant.  But Rigmaiden’s defense team argues that pen registers and the Stingray are incomparable because of the Stingray’s superior capabilities to pinpoint a particular cell phone location.  Consequently, the defense team has urged the Arizona federal court to use the recent Supreme Court decision in United States v. Jones, prohibiting police from attaching a GPS device to a vehicle without a search warrant, to prevent the government from using the Stingray to track alleged suspects without a warrant.[11]

There is a significant constitutional question as to whether the use of Stingrays, which automatically gather information from cell phones belonging to innocent third parties, could ever be considered limited enough as to be in compliance with the Fourth Amendment protection against unreasonable search and seizures.  But regardless of the constitutional question, the government should not be able to use the Stingray without a warrant.  Despite the Justice Department’s narrow reading of the Fourth Amendment, claiming that people do not have a reasonable expectation of privacy over their cell phone location data,[12]limits must be drawn to protect citizens’ privacy in light of emerging technology.

Jared Engelking
Blogger, Criminal Law Brief

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1 comment:

  1. This is very interesting, and definitely a sticky situation, but ultimately, I believe the government has the authority to use the information gathered by Stingray in the court of law. If cellphone interceptors can be purchased by the general public in local electronic shops, and if recorded conversations from “wired” undercover agents and witnesses can be used as evidence, what makes Stingray’s information any different? While I do believe that it could be an invasion of privacy and there are countless other people having their conversations recorded as a result, as you mentioned, I feel like it is still admissible information; especially (though, bias) when thinking about the $4 million dollars this person stole. Definitely a tough situation to make a judgment call on.