• Is Cell Phone Monitoring Constitutional?, Revisited: Stingray, Tower Dumps and the 4th Amendment
  • December 17, 2013 | Author: Andrew M. Hinkes
  • Law Firm: Berger Singerman LLP - Fort Lauderdale Office
  • America’s mobile telephone carriers have been busy responding to police requests for data. How busy? According to reports, mobile carriers responded to more than 1.1 million requests for cell phone information, nationwide, in 2012. The eight main cell phone providers reported that requests actually went down from 2011, when the nation’s carriers processed 1.3 million requests for user data. Many of these requests were likely performed through highly invasive Stingray surveillance, and “tower dumps,” both of which present serious constitutional concerns.

    So, when law enforcement calls a mobile provider for information, what do they get? More than you’d think. Increasingly, law enforcement seek so called “tower dumps” which are requests for information on all the information that passed through a specific cellphone tower within a certain period of time, usually a block of two or more hours. These tower dumps are problematic because they are not a request for a specific collection of specific information about a unique target, but rather a dump of all information held on that specific cell tower, which may process tens of thousands of calls and texts within that block of time. Investigation has also determined that mobile carriers store, and often turn over other information, including GPS location data, Web site addresses and, in some cases, the search terms entered into mobile devices. And yes, all of this is typically provided without a warrant.

    Another, even more egregious example is the technology used by law enforcement known as “Stingrays.” A “Stingray” is a portable device, manufactured by the Harris Corporation, that acts as a fake cell tower and can gather data from cell phones who are duped into sending data to the fake tower. Harris has a number of other similar surveillance devices with various logging, capture and recording features which have been purchased by various police agencies. The Stingray and similar devices are described by critics as “...the biggest threat to cell phone privacy you don’t know about,” EFF said in a statement.

    When discussing Stingrays, ACLU privacy researcher Christopher Soghoian told a Yale Law School Location Tracking and Biometrics Conference panel that “the government uses the device either when a target is routinely and quickly changing phones to thwart a wiretap or when police don’t have sufficient cause for a warrant.” Notably, in all but a few instances, no warrants are needed for this type of surveillance. Why? It’s simple- the law simply has yet to catch up to this very new technology.

    So, what can we do about it? Some, even within the government, believe that this technology gives too much power. One federal judge this year, in a rare public ruling, required a warrant for tower dumps. The order also required the prosecutor to destroy non-relevant data and to notify other affected parties that their records had been collected. That same magistrate entered an order denying a request for the warrantless use of a Stingray.

    Congress, it seems, has also taken notice. Sen. Edward J. Markey (D-Mass.), has sponsored legislation intended to erect barriers to the wholesale dump of user information to local law enforcement. Markey’s proposed legislation would require a warrant to obtain GPS location data, impose limits on how long carriers can keep customers’ phone data, and mandate routine disclosures by law enforcement agencies on the nature and volume of requests they make of carriers.

    The Stingray and other forms of wiretap/ information gathering appliances appear to violate the 4th Amendment’s prohibition against unreasonable search and seizure, but until and unless the Courts speak with one voice, I expect challenges to the constitutionality of this wide-sweeping form of data collection to continue.