- - Friday, July 18, 2014

Imagine if the government had a device that could capture all the information your cellphone transmits — where you are, what your telephone number is, who you are calling, who called you, how long you spoke and, possibly, even what you said to them. You don’t need to imagine very hard. The federal government, as well as state and local law enforcement agencies across the country, have exactly such a device. It’s called a “stingray,” or cell-site simulator (StingRay is a line of devices sold by the Harris Corp., the main manufacturer.)

Stingrays pose enormous privacy concerns. Even worse, the government is using them in secret — not telling courts, criminal defendants, or the public about what these devices are and how they’re being used.

As a result, the government is writing its own surveillance rules. That’s not how our system of checks and balances is supposed to work.

A stingray operates by masquerading as a cell tower. Cellphone companies provide coverage through a network of towers that connect cellphones to the regular telephone network. As long as a cellphone is on (and not in airplane mode), it automatically transmits information, including the phone’s numeric identifier and location, to a cell tower.

By pretending to be the cellphone company’s cell tower, a stingray tricks cellphones into disconnecting with the real cell tower and instead transmitting information to the stingray. This allows the stingray to scoop up all the information that cellphones would ordinarily be relaying to the cellphone company.

What kind of information is that exactly? A lot. Because most of us take our cellphones with us wherever we go, a stingray can figure out exactly where we’ve been and when. It can figure out our location with enormous precision and track us when we are inside our own homes, at church or the therapist’s office.

It can determine who we call and who calls us, which reveals a great deal of information about our social networks and private associations. Unlike other cellphone-surveillance technologies, stingrays are not linked to a single device, so they scoop up information from all nearby wireless devices — allowing the government to get information not just from one phone, but tens or hundreds of them.

Stingrays raise serious privacy concerns because of the indiscriminate and dragnet way in which they operate. The Framers of our Constitution came to the conclusion that the government shouldn’t be able to get our private information without proving to a court that it had a good reason to believe that the information would reveal evidence of a crime.

The Fourth Amendment stands for the basic principle that the government isn’t allowed to engage in “general rummaging.” In fact, the Supreme Court just recently reiterated that principle in a case involving cellphone searches, and concluded that the police need a warrant to look through the information on the cellphone of someone who has been arrested.

Stingrays violate all of these basic privacy principles. They engage in the electronic equivalent of the “general searches” that the Fourth Amendment was adopted to prohibit.

While there are good reasons why the government should simply be prohibited from using stingrays under the Fourth Amendment, at a minimum law enforcement should be asking courts for warrants to use these devices. The warrant requirement is our constitutional mechanism for ensuring that we strike the right balance between the government’s legitimate law enforcement interests and our privacy rights. In our constitutional system, courts, and not law enforcement agencies, decide how to strike that balance.

Troublingly, however, the government is going out of its way to shroud stingrays in secrecy. Some law enforcement agencies might be using these devices without seeking warrants. Those that do seek court permission may still be hiding stingray use from the judges. As a result, the government is preventing courts from exercising their constitutional function of deciding important legal questions, like whether stingrays should be used at all and, if so, under what circumstances.

People care about privacy — and so do our elected officials. Several states have already enacted legislation requiring the police to get a warrant to track cellphones through stingrays or other means, but the legislative branches can’t regulate something if they don’t know it’s happening.

In the meantime, the American Civil Liberties Union’s new guide to stingrays provides criminal-defense attorneys with an overview of stingray technology and how to determine if a stingray might have been used in one of their cases.

Removing the veil of secrecy around stingrays is an important first step in protecting our privacy rights.

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