JEFFERSON CITY, Mo. (May 4, 2017) – On Tuesday, a Missouri House committee passed a bill that would ban the use of “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations. The proposed law would not only protect privacy in the Show Me State, but would also hinder one aspect of the federal surveillance state.
Sen. Will Kraus (R-Lee’s Summit) introduced Senate Bill 84 SB84 on Jan. 4. The legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
On Tuesday, the House Crime Prevention and Public Safety Committee passed SB84 with a number of technical amendments. The Senate previously approved the measure by a 33-0 vote.
The proposed law would require law enforcement agencies to get a warrant based on probable cause before deploying a stingray device with only a few exceptions. Warrantless use of these devices would only be allowed if the owner reports a communication device lost or stolen, and in certain specific emergency situations. If used under the emergency exception, law enforcement must apply for a warrant “as soon as practicable.” If the judge declines to issue a warrant, police would have to destroy any evidence gathered.
The legislation would require law enforcement to immediately destroy any information collected on any person other than the target named in the warrant, and would require police to destroy all information within 30 days unless probable cause exists to believe the information is evidence of a crime. Missouri law applies strict limits on sharing of information, and this would apply to stingrays with the passage of SB84.
The bill also includes a provision that would prohibit state or local law enforcement agencies from obtaining information gather through warrantless stingray use by the federal government or another state.
Unless subsection 6 of this section or another exception to the warrant requirement provided under state or federal law applies, a law enforcement officer may not obtain or use information from a cell site simulator device to assist with, participate in, provide material support or resources for, or enable or facilitate an investigation conducted by a law enforcement agency of the federal government or of another state without:
(1) The consent of the owner or possessor of the communications device; or
(2) A warrant obtained under this section.
Any information collected outside of the parameters of the law would be inadmissible in court.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases.
The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of HB403 would represent a major blow to the surveillance state and a win for privacy.
WHAT’S NEXT
SB84 will move to the House Rules – Legislative Oversight Committee for further consideration. It must pass by a majority vote before moving to the full House.
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