BATON ROUGE, La. (May 23, 2016) – Today, the Louisiana House gave final approval to a bill that would require a court order for the use of “stingrays” to track the location of phones and sweep up electronic communications. If Gov. John Bell Edwards signs the bill, it would not only protect privacy in the state, but would also hinder one aspect of the federal surveillance state.
Rep. Kenneth Havard (R-Jackson) introduced House Bill 254 (HB254). 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.
HB254 would require law enforcement to obtain a court order before using a stingray device in most cases.
Last week, the Senate passed an amended version of HB254 by a 38-0 vote. The amendments clarified some language in the bill and included a provision to allow third parties served with court orders to disclose them to their attorney even when a gag order is in place replied. Today, the House unanimously concurred with the amendments 92-0.
Off to the governor’s desk, the proposed law is similar to statutes on the books relating to phone wire tapping equipment.
The legislation would require law enforcement to delete any information incidentally captured on people not named in the court order, and to delete any information of metadata collected from a target within 35 days if there is no probable cause to support the belief that such information is evidence of a crime.
The bill does provide for a narrow set of exceptions during “exigent circumstances.” Even then, police would have to get a court order within 72 hours. The bill does include other exceptions to the court order requirement, including searches for missing persons. lost phones, locating parole violators and other reasonable purposes.
Currently, police in Louisiana can track cell phone locations and even listen in to conversations with no restrictions or limitations. Passage of HB254 would be a vast improvement over the status quo.
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 last fall, 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. This represents a major blow to the surveillance state and a win for privacy.
The bill now goes to Gov. Edward’s desk. He will have 10 days from the date of transmittal to sign or veto the legislation. If transmittal happens less than 10 days before the end of the session (scheduled for June 6) he will have 20 days. If he does not act within the allotted time, it will become law without his signature.