OLYMPIA, Wash. (April 19, 2015) – Last Thursday, the Washington state House gave final approval to a bipartisan bill that would prohibit the use of “stingrays” to track the location of phones and sweep up electronic communications without a warrant. If signed by Gov. Jay Inslee, the legislation will not only protect privacy in Washington state, but will also hinder one part of the federal surveillance state.
Cell site simulators, known as “stingrays,” spoof cell phone towers. Any device within range is essentially tricked 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.
Rep. Dave Taylor, along with 16 cosponsors, introduced House Bill 1440 (HB1440) back in January. The bill prohibits the use of stingray devices unless law enforcement meets one of three conditions.
The state and its political subdivisions shall not, by means of a cell site simulator device, collect or use a person’s electronic data or metadata without
(1) that person’s informed consent,
(2) a warrant, based upon probable cause, that describes with particularity the person, place, or thing to be searched or seized, or
(3) acting in accordance with a legally recognized exception to the warrant
Both the House and the Senate unanimously passed HB1440. The House approved the measure 97-0, and the Senate passed the bill 47-0. The House concurred with some minor Senate amendment 96-0 last Thursday, and the bill now moves on to the governor’s desk for his signature.
IMPACT ON FEDERAL 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. For example, the Baltimore Sun reported that last fall, 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 sate 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. This represents a major blow to the surveillance state and a win for privacy.
The legislature had not transmitted HB1440 to Gov. Inslee as of publication. If sent to his desk before the session closes April 26, he will have five days to sign or veto. If transmittal occurs after the end of the session, he will have 15 days. If he fails to act, the bill will become law without his signature.