US police departments have been forced to get warrants to track vehicles, but courts have been split on tracking cell phones
An unlikely coalition of congressmen announced support for new legislation Wednesday that would force police and other agencies to get a warrant before tracking the movements of suspects using GPS data. The law is aimed at clearing up a legal question that even US courts have struggled to answer.
“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements,” said Senator Ron Wyden, a Democrat from Oregon whose co-sponsors include Democratic congressman John Conyers of Michigan and Republican Jason Chaffetz of Utah. “Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times.”
The cellphone surveillance tech the legislation aims to regulate is known as a “stingray” that mimic cell towers in order to pin signal and track phones, initially developed for military and intelligence, but has been used extensively by departments like LAPD.
The law seeks to clarify whether or not their blanket use by law enforcement is constitutional. The US Supreme Court declined to hear arguments in Davis, Quartavious vs. United States, with the defense trying to disqualify geolocation data that was used to convict Davis of multiple robberies, leading to a life sentence. The guilt of Davis himself aside, the unwillingness for the court to rule on the permissiveness of warrant-less use of such data hits a raw nerve with Republicans and Democrats on issues of personal privacy.
“Congress has an obligation to act quickly to protect Americans from violations of their privacy made possible by emerging technologies,” said Chaffetz. “As we welcome innovative technologies that help fight crime, we must be mindful of the potential for abuse.”
Chaffetz has become a polarizing figure of late with his position as the chair of the House Oversight & Government Reform Committee, where he has received criticism for zealously investigating then-candidate Hillary Clinton but reluctantly doing the same of now-President Donald Trump.
Directly taking data from a target
It is not clear why the court neglected to hear that case in 2015 – it rejects hearing dozens of cases per year in favor of a select few – but the court did rule in 2012 it was necessary to obtain a warrant to place GPS trackers on cars. That rare 9-0 ruling set one precedent, but it did not clearly apply to generally tracking people by using more ubiquitous cell phones.
Cell site simulators like Stingrays (produced by the Harris Corporation) and Dirtboxes (Digital Receiver Technology/DRT) can disconnect phones from regular providers and reconnect them via the simulator, usually by tricking a phone into connecting to a stronger signal broadcast by the Stingray. The box identifies a target phone by downloading IMSI or ESN data directly from the phone. Taking private data straight from an individual is likely what is getting under the skin of the bill’s sponsors.
The FBI has argued they do not take, or do not have to take, actual communication data from cell phones. But the Stingray can intercept information from those phones, leaving a slippery slope that lawmakers will be eager to block.