JACKSON, Miss. (Jan. 16, 2017) – A bill introduced in the Mississippi House would ban the use of “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations. The proposed law would not only protect privacy in Mississippi, but would also hinder one aspect of the federal surveillance state.
Rep. Steve Hopkins (R-Southaven) introduced House Bill 541 (HB541) on Jan. 13. The legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
HB641 would require a warrant before a law enforcement agency could use a stingray with only a few exceptions. Warrantless use of stingrays would only be allowed when a law enforcement agency determines that there is sufficient probable cause that the person whose information is sought has committed, is committing or is about to commit an act of terrorism and there are exigent circumstances that exist which require the use of a cell site simulator device to prevent an imminent loss of life or bodily injury to a person. Law enforcement would have to destroy any evidence obtained through a warrantless stingray deployment within 24 hours if a court doesn’t subsequently authorize a warrant.
The bill also includes provisions regulating the preservation of collected data.
A law enforcement agency may not use, copy or disclose, for any purpose, the location information, stored data or transmitted data of an electronic device that is not the subject of a warrant that is collected as part of an effort to obtain the location information, stored data or transmitted data of the electronic device that is the subject of a warrant issued under subsection (2) of this section. Any non-target data must be deleted as soon as reasonably practicable, but no later than forty-eight (48) hours after such data is collected.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases.
The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of HB541 would represent a major blow to the surveillance state and a win for privacy.