On Wednesday, the Maryland Court of Special Appeals published a legal opinion by Judge Andrea Leahy that protects one’s constitutional right to privacy in the digital age. The opinion suppresses the evidence obtained by the Baltimore Police Department’s use of highly controversial cell site simulators - known colloquially as stingrays - to track down a murder suspect in his own home using signals from his cell phone.[1] Stingrays are invasive cell phone surveillance devices used by law enforcement that impersonate cell towers, tricking nearby cell phones into transmitting their locations and other identifying information.[2] The opinion finds that the use of a stingray, considered an “active cellular surveillance device,” obtains information not voluntarily shared with third parties and requires a warrant.[3]
Judge Leahy’s reasoning is sound. The opinion applies the test pronounced in Katz v. U.S., which determines that a Fourth Amendment search occurs when a person has an “actual expectation of privacy” that “society is prepared to recognize as ‘reasonable.’”[4] In Katz and other cases, the Supreme Court has found that the use of surveillance technology not available to the general public to gather information about the interior of a home (such as thermal imaging) constitutes a Fourth Amendment search.[5] Outside the home, the Court has ruled that the use of GPS data from a tracking device fixed to a car is also a Fourth Amendment search.[6] Even though a person traveling on public thoroughfares in a vehicle is visible to the public and “‘the eye cannot by the laws of England be guilty of trespass,’” the use of a stingray goes above and beyond visual surveillance.[7]
The result of allowing the unfettered use of cell-site simulators would be to effectively install a GPS monitoring device on every American of the type requiring a warrant in United States v. Jones. As Justice Sotomayor wrote in her concurrence in Jones, “Disclosed in [GPS] data… will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. The Government can store such records and efficiently mine them for information years into the future… Awareness that the Government may be watching chills associational and expressive freedoms.”[8]
Moreover, the ownership and use of a cell phone in contemporary American society is not voluntary; it is a requirement of day-to-day life. Maintaining a job in both white-collar and blue-collar settings often requires being on-call to answer emails, messages, or phone calls from colleagues or clients. Personal relationships, group memberships, and other associations often necessitate the use of cell phones. Perhaps citizens should forgo fancy smartphones to avoid such offensive invasions of privacy, one might suggest. Even an old, scratched, clunky Motorola Razr from 2004 is susceptible to cell-site simulators. It is unreasonable to establish surrendering this ubiquitous piece of technology as the price of admission to the realm of reasonable privacy protection. Doing so would lower the temperature of the chill on associational and expressive freedoms described by Justice Sotomayor to an arctic deep-freeze.
This rationale was embraced by the Justice Department in September, which issued a department-wide policy mandating all federal agents “obtain a search warrant supported by probable cause before using a cell-site simulator,” setting limited exceptions for exigent circumstances.[9] The legislatures in California, Washington, Virginia, Minnesota, and Utah have mandated that a warrant must be issued for the use of stingrays.[10] However, as State of Maryland v. Kerron Andrews demonstrates, many state and local police departments are not bound by this requirement.
In 2014, the ACLU of Florida obtained internal emails from the Sarasota Police Department through a public records request. The emails revealed that police falsely claimed in probable cause affidavits that information obtained from stingrays came from confidential informants.[11] “In reports or depositions we simply refer to the assistance as ‘received information from a confidential source regarding the location of the suspect,’” one email reads. “To date this has not been challenged…”[12] This deception is likely at play in other police departments, making it more difficult for defendants like Kerron Andrews to appeal their convictions by challenging unconstitutional surveillance techniques.
Instead of the piecemeal approach of waiting for legislatures and judges in every state to protect privacy, especially as the use of cell-site simulators is being concealed by police, Congress should act now to require a warrant to be issued before law enforcement at every level uses a stingray. In the absence of congressional action, the Supreme Court should review this issue and rule according to the precedent established in Katz, Kyllo, and Jones. Doing so would protect the constitutional rights to privacy guaranteed to all Americans.
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[1] State of Md. v. Kerron Andrews, 1496 Md. App. 1 (Md. Ct. Spec. App. 2016).
[2] Id., at 27.
[3] Id., at 26.
[4] Katz v. United States, 389 U.S. 347, 359 (1967).
[5] Kyllo v. United States, 533 U.S. 27, 33 (2001).
[6] United States v. Jones, 132 S. Ct. 945, 948 (2012).
[7] Knotts v. United States, 460 U.S. 276, 286 (1983).
[8] Jones, 132 S. Ct. at 955-56.
[9] Dep't of Justice, Justice Department Announces Enhanced Policy for Use of Cell-Site Simulators (2015).
[10] Cyrus Farivar, Appeals Court: No Stingrays Without a Warrant, Explanation to Judge, ARS Technica, Mar. 31, 2016 at 1.
[11] Maria Kayanan, Internal Police Emails Show Efforts to Hide Use of Cell Phone Tracking, Am. Civ. Liberties Union, June 19, 2014 at 1.
[12] Id.
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