SALEM, Ore. (Jan. 13, 2017) – A bill introduced in the Oregon Senate would ban the use “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations, and would restrict warrantless collection of cell phone data from third parties. Passage of the bill would not only protect privacy in Oregon, but would also hinder the federal surveillance state.
The Senate Interim Committee on Judiciary filed Senate Bill 515 (SB515) on Jan. 9. The legislation would require law enforcement agencies to get a warrant before accessing electronic communications data, including the contents of email, text messages, phone conversations and other information created by the user of an electronic communication device that is stored electronically and not publicly available or accessible by the general public through lawful means. SB515 would also require a court order before police could access location data, and a subpoena before they could access subscriber account information from communication services.
Practically speaking, 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. It would also limit warrantless collection of electronic data and information stored by third party service providers.
SB515 does include exceptions to the warrant requirements if the owner of a device gives consent, or if exigent circumstances exist and police have probable cause to believe a felony is or has occurred. It would also allow warrantless access to electronic data when necessary to respond to a request for emergency service, to locate a missing person and to locate a missing electronic device.
The legislation also places restrictions on tracking vehicles or individuals via tracking devices.
SB515 places strict restriction on the retention and sharing of any data or information legally collected.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The feds can regularly tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE.
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 existence of databases full of electronic information at the state and local level creates the potential for the federal government to access all kinds of private data without a warrant, and without the person even knowing it. Limiting the amount of information gathered at the state level also limits data available to the federal surveillance state.
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 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 SB515 would represent a major blow to the surveillance state and a win for privacy.
SB515 has not been referred to a committee. Once it has, it will need to pass by a majority vote before moving on in the legislative process.