TALLAHASSEE, Fla. (Jan. 5, 2021) – A bill prefiled in the Florida Senate would ban warrantless location tracking and the use of stingray devices to sweep up electronic communications in most situations. The proposed law would not only protect privacy in Florida, but it would also hinder one aspect of the federal surveillance state.
Sen. Jeff Brandes (R-St. Petersburg) prefiled Senate Bill 144 (S144) for the 2020 legislative session. 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.
S144 would require police to get a search warrant based on probable cause before acquiring real-time or historical GPS location data, and before using any type of mobile tracking device in most situations. Police already must get a warrant before intercepting cell phone communication content. Adding location tracking to the warrant requirement would effectively end warrantless stingray use in Florida. The legislation would also require police to get a warrant before accessing stored location data from a service provider. Under current law, police can access stored data with a court order.
Florida law guarantees the right of a person “to be secure in their persons, houses, papers and effects against unreasonable seizures and searches.” S144 would add “and against the unreasonable interception of private communications by any means” to that statute.
The proposed law would also change Florida statutes to enshrine an expectation of privacy for location information into law.
“To safeguard the privacy of innocent persons, the Legislature recognizes the subjective expectation of privacy inreal-time cell-site location data, real-time precise global positioning system location data, and historical precise global positioning system location data which society is now prepared to accept is objectively reasonable. As such, the law enforcement collection of the precise location of a person, cellular phone, or portable electronic communication device without the consent of the person or owner of the cellular phone or portable electronic communication device should be allowed only when authorized by a search warrant issued by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.”
The bill does include some exceptions to the warrant requirement. Police could use stingray devices in an emergency situation that involves the immediate danger of death or serious injury, the danger of escape of a prisoner, or when specifically defined exigent circumstances exist. In these situations, police would still be required to obtain a warrant within 48 hours.
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 (NDA). 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.”
A Deleware State Police NDA with the Harris Corporation obtained by the ACLU reveals just how much secrecy surrounds stingray surveillance. The ACLU summed up the NDA.
The agreement, signed by a state police detective in 2010, stated that officers could not “discuss, publish, release or disclose any information pertaining to the (cell phone tracking) products” to the general public, to companies, to other governmental agencies, or even to other officers who do not have a “need to know.” A letter attached to the agreement, and signed by Harris Corp.’s account manager, said police are not permitted to talk about the devices with “elected officials.” “Stealth, quiet approach and skilled execution are the glue that transforms weapons and technology investments into capabilities and results,” Harris Corp.’s Michael E. Dillon said in the letter. “Only officers with arrest authority are permitted to use them (Stingrays) or have knowledge of how they work.”
Harris cited federal law for the conditions in the agreement, which it stated is similar to other “intelligence oriented aspects of your operations.”
The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.
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 databases.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and 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.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. 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. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
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. Enactment of laws limiting or prohibiting the use of stingrays strikes a major blow to the surveillance state and would be a win for privacy.
S144 was referred to the Senate Criminal Justice, Judiciary, and Rules Committees. It will have to pass all three by a majority vote before moving to the full Senate for a vote.
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