A bill that would prohibit police from using currently utilized mobile devices to spy on residents’ cellphone usage without first obtaining search warrants unanimously passed the Virginia House of Delegates and is on its way toward becoming law.
HB 17 passed 99-0 on Feb. 11 and is currently undergoing evaluation in the Virginia Senate’s Courts of Justice Committee.
If passed into law, the bill would, except under certain very narrow circumstances, prohibit the use of International Mobile Subscriber Identity catchers by police agencies such as the Fairfax County Police — who currently use them — without first obtaining a search warrant.
The devices, called “StingRays,” are manufactured by the Florida-based Harris Corporation, and are legally marketed to military and law enforcement as ways of “triangulating” the position of a cellphone user by mimicking a cellphone tower and tracking the location of that person’s cellphone signals.
But according to human rights groups such as the American Civil Liberties Union and the Electronic Privacy Information Center, the devices are capable of doing much more, such as intercepting phone calls and even text messages.
“That type of usage would be illegal,” said Alan Butler of EPIC. “But nonetheless, the capability is there.”
And that makes use of the devices without a search warrant a 4th Amendment issue, Butler says.
The Fourth Amendment precludes unreasonable searches and seizures of property and effects without a warrant defining a probable cause.
According to Fairfax County government documents, the Fairfax County Police Department has been using the devices for at least four years, but spokesperson Lucy Caldwell declined to comment on exactly how police use them, saying only that “the FCPD does not comment on our investigative tools, nor do we discuss investigative techniques or capabilities … however, our detectives and officers follow all state and federal legal requirements for the use of technologies that we do use.”
In a Fairfax County Board of Supervisors agenda dated Sept. 28, 2010, police state that use of the device is “used in conjunction with a court order, and the Fairfax County Police Department has been sponsored to use this tracking device through the U.S. Marshals Service.” In the same agenda, the department says it will use $126,661 of a federal grant to “enhance the StingRay cell phone tracking system,” which is “capable of locating and tracking cellular service whether or not a phone is transmitting. As long as the cellular phone is powered on, the StingRay is capable of locating it.”
In addition to tracking cellphone use for “crime victims, suspects of crimes, wanted persons, and those in need of emergency services,” police also state in the agenda that the StingRay device enhances “officer safety and allows the officers to stay in communication with each other during covert operations.”
Butler says not all uses of the device potentially conflict with the Fourth Amendment, but because the capability exists, warrants should first be issued.
“I am not saying they should never be used,” he said. “But at the same time, you should clearly be getting a warrant first.”
HB 17 lists four circumstances in which real-time location data could still be obtained by police without a warrant:
• To respond to a user’s call for emergency service;
• With the “informed affirmative consent” of the owner
• With the “informed affirmative consent” of the owner’s legal guardian or next of kin; and
• If there is an emergency involving danger to a person.
“It’s a powerful device and its use should be regulated,” Butler said. “With it in the wrong hands, a phone system can be hijacked without either the user or the phone company being aware.”