‘Fake Cell Phone Tower’ Used by Police for Warrantless Tracking
Did you know your cell phone can be tracked by the government, even when you’re not using it? Using a device called a Stingray, which acts like a “fake” cell phone tower allowing them to search large areas for a specific cell phone signal, the government is able to gather data on any other phones in the area.
That clearly violates the Fourth Amendment, according to a constitutional challenge mounted by the Electronic Frontier Foundation (EFF) and the ACLU as friends of the court in a federal criminal case on Oct. 26 in California. In that case, the FBI located Daniel Rigmaiden using a Stingray and is prosecuting him for tax fraud.
Rigmaiden’s case centers on a device that law enforcement have been using with increased frequency and secrecy, according to the EFF: an International Mobile Subscriber Identity locator, or “IMSI catcher.” The IMSI catcher Stingray is a portable device that works like a fake cell tower, gathering data on nearby cell phones and locating a single phone even if it isn’t making a call, according to the Modern Survival Blog.
“As far as we know, [the technology] has been around for a few years,” observes Hanni Fakhoury, a staff attorney with the EFF in San Francisco. “Its use is troubling because it has the potential to capture not only information about innocent people (phones that just happen to be in the area law enforcement is interested in), but also the contents of communications, which typically requires a wiretap order.”
That’s what Rigmaiden is challenging in his motion to dismiss. He first had to force the government to hand over information gathered from the device, according to The Wall Street Journal. “The Federal Bureau of Investigation considers the devices to be so critical that it has a policy of deleting the data gathered in their use, mainly to keep suspects in the dark about their capabilities,” according to an FBI official speaking to The Wall Street Journal.
Forbidden by Fourth Amendment
Fakhoury says the larger problem with the government’s use of the device is that any permission law enforcement obtains from a court to use it turns into a “general warrant,” which is forbidden by the Fourth Amendment. The EFF and the ACLU’s amicus curiae (or “friend of the court”) brief focuses on that problem.
“In justifying its use of the stingray here, the government claims it obtained a warrant, authorizing it to use it. But when you look at the actual ‘warrant’ it requested, it doesn’t reference stingrays or IMSI catchers at all,” he explains. The warrant simply required Verizon to disclose cell phone records so the police could track Rigmaiden’s aircard, a wireless broadband modem used to connect to cell networks.
“Instead, the government took this to mean they could operate a Stingray and capture not only information about Rigmaiden, but everyone else in the area too,” Fakhoury says. “We think this had the effect of turning the warrant into a general warrant, allowing the government to look and take whatever it wanted.”
The Fourth Amendment prohibits warrants that are so vague and general that they allow police to rummage through anything they want. “The Fourth Amendment requires warrants to be ‘particular,’” he continues, “meaning they must specifically describe the place to be searched and explicitly detail what officers are allowed to look at and take.”
Rigmaiden’s case is attracting attention because of its novelty. “The implications of the case are great simply because it’s the first federal case to address the constitutionality of the technology,” Fakhoury says.
The technology “appears to be gaining in popularity,” he warns. “Coupled with law enforcement’s unwillingness to provide information about the devices to the public or even courts about how frequently they use them, in what types of cases they use them, and how they deal with the extra information they gain as a result of using them, there are lots of unanswered questions.”
Fakhoury says the only way we can be sure the government is not zeroing in on our cell phones with a Stingray at this moment is to turn them off. “That’s the precise problem with a Stingray,” he says. “It’s designed to fool cell phones in order to capture information about them.”
Should the government be able to use fake cell phone tower technology to capture data from innocent users in its hunts for specific criminals? Leave your opinion below.