- - Wednesday, November 4, 2015

ANALYSIS/OPINION:

In the early days of the cellphone, “Can you hear me now?” was a popular catch phrase of television hucksters for cellphone companies. It was a reasonable question then, when the phones were a novelty that didn’t always work as advertised, but now nobody has to be concerned about being heard. The government, armed with all sorts of tracking equipment, can take note of every electronic signal zipping through the ether.

There’s the problem. Americans have a constitutional right to their privacy, but eternal vigilance is the price of liberty. The government is a natural snoop, and technology can make snoopery available to nearly everyone. Drawing a clear distinction between the legal use of such technology and the abuse of information technology has never been more urgent.

The law-abiding need protection from the unwarranted attention of a suitcase-sized electronic device that can be packed into a car or truck, and mimic the function of a cell tower. Called “Stingray,” it tricks cell phones into answering a signal from the suitcase, enabling law enforcement agencies to pinpoint the user’s location. Stingray does not have the ability to hear the human voice, not yet, but it can tap into text messages.

Since the first use of the devices, beginning in the 1990s, Stingray has become popular with law enforcement officials for tracking suspects in terrorism and money-laundering cases. But the very nature of surveillance encourages abuse. Protecting the Fourth Amendment prohibitions against unwarranted search and seizure means Stingray must be used only by court sanction and with a court order.

Toward that end, Rep. Jason Chaffetz of Utah, a Republican, was joined on Monday by Reps. John Conyers of Michigan and Peter Welsh of Vermont, both Democrats, in introducing the Stingray Privacy Act, which would prohibit the use of such devices without a warrant.

Exceptions are granted for foreign intelligence surveillance and in emergencies when someone is in danger of imminent injury or death, and when national security is threatened. Breakers of the law would be punished by 10 years in prison, by fines, or both.

Concern over intrusive cellphone tracking has grown as electronic spy tools have proliferated among government agencies. An investigation by the FBI in 2008 led to an indictment for fraud and the exposure of the government’s deployment of warrantless phone tracking. This raised the question whether the constitutional rights of the suspect were violated, as well as the rights of innocents whose cell phones were tracked. To pre-empt further legal challenges to Stingray at the federal level, the Justice Department issued a new policy in September that requires government agents to obtain a court order before cellphone tracking, and prohibits electronic storage of any information gathered.

Now nearly two-dozen states and the District of Columbia have joined the federal government in using Stingray. Even the taxman has joined the ranks. Internal Revenue Service Commissioner John Koskinen told Congress last week that the IRS criminal investigators deploys Stingray to track money-launderers but only with the requisite court order.

Technology advances without regard to virtue, and it’s incumbent on the makers of law to keep the use of new inventions on the right side of the Constitution’s guarantee of liberty. The mobile cellphone tracker can be a convenient weapon for justice, but such weapons are easily turned against the law-abiding. The Stingray Privacy Act can help keep the investigators on the right side of the law.

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