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Missouri Bill Would Prohibit Warrantless Stingray Spying, Hinder Federal Surveillance Program

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JEFFERSON CITY, Mo. (Dec. 7, 2016) – A bill prefiled in the Missouri Senate for the 2017 session 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 the Show Me State, but would also hinder one aspect of the federal surveillance state.

Sen. Will Kraus (R-Lee’s Summit) prefiled Senate Bill 84 (SB84) on Dec. 1. The legislation would help block the use of cell site simulators, commonly known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower. This allows 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.

SB84 would require law enforcement agencies to get a warrant before using a stingray in most situations. The proposed law would allow the warrantless use of a cell cite simulator only if the owner of a device reports it stolen, or in a few specified emergency situations when “there exists a hostage, barricade, suicide attempt, or other emergency situation in which a person unlawfully and directly threatens another with death or exposes another to a substantial risk of serious physical injury.”

The legislation would also require a warrant before state or local police could use a stingray to assist in a federal investigation in most situations.

Along with the warrant requirement, SB84 would place strict limits on when and how the any data, metadata, communication, or other information obtained by the authorized use of a cell site simulator device may be disclosed or used. It also stipulates that police must take all steps necessary to limit the collection of any information to the target specified in the warrant. Law enforcement must immediately destroy any data incidentally gathered from any device not specified in the warrant and must destroy any gathered data within 30 days if there is no longer probable cause to support the belief that such data is evidence of a crime.

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 SB84 would represent a major blow to the surveillance state and a win for privacy.

UP NEXT

SB84 will be assigned to a committee once the regular session begins in January. It will have to pass out of the committee by a majority vote before moving on in the legislative process.