What Are “Stingrays” and Why You Should Care - Fordham Intellectual Property, Media & Entertainment Law Journal
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What Are “Stingrays” and Why You Should Care

What Are “Stingrays” and Why You Should Care

Did you know right now, without a warrant, your local police force may be searching and tracking you through your cellphone? This can and is being done through the use of devices called cell-site simulators, commonly referred to by its brand name Stingray.1 These devices mimic cellphone towers and trick cellphones in the area into transmitting their locations and identifying information to it instead of a tower, all while not alerting the user of the phone.2 As a result, the user of the device can figure out who, when, and to where you are calling, and the precise location of every device within the range.3

The DOJ and DHS recently came out with new policies (which have problems of their own but that’s a discussion for another day) requiring the use of warrants but many state and local agencies still have no such guidelines.4 Challenges have been made in court demanding information on how they are used but rather than turn that over, prosecutors are instructed to drop the case because of nondisclosure agreements required by the FBI in order to receive a Stingray in the first place.5

This simply cannot continue and is a perfect situation to apply the rule of lenity. This states the government should be required to provide notice to defendants in close or novel cases because in those circumstances it is the court’s role, not the government’s behind closed doors, to decide whether suppression is ultimately warranted.6 If state and local agencies aren’t going to come up with their own policies and guidelines on the use of Stingrays, the courts should be able to step in and make their own.

 

 

Image: “How Stingray Works” by USA Today (H/T Chicago Times)


  1. See Matthew Keys, Sting Operation: Police Tracked Cellphones with ‘Stingrays’, TheBlot Magazine (June 5, 2014), http://www.theblot.com/documents-reveal-police-track-cell-phones-stingrays-7720535 [http://perma.cc/PUY4-HQ9H] (finding the police used a Stingray to find and force themselves into a suspect’s apartment without a warrant); Kim Zetter, Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight, Wired (Apr. 9, 2013, 6:30 AM) http://www.wired.com/2013/04/verizon-rigmaiden-aircard/ [http://perma.cc/WDB6-A4PJ] (reporting the FBI used a Stingray to find their suspect in apartment 1122).

  2. See Stingray Tracking Devices: Who’s Got Them?, American Civil Liberties Union (last visited Nov. 9, 2015) https://www.aclu.org/map/stingray-tracking-devices-whos-got-them [http://perma.cc/UEN4-X3KC].

  3. See Hanni Fakhoury & Trevor Timm, Stingrays: The Biggest Technological Threat to Cell Phone Privacy You Don’t Know About, Electronic Frontier Foundation (Oct. 22, 2012), https://www.eff.org/deeplinks/2012/10/stingrays-biggest-unknown-technological-threat-cell-phone-privacy [http://perma.cc/TEM3-RSV4]; see also Dina Rasour, Protesters Beware: Don’t Get Stung by Stingrays, Occupy.com (Sept. 17, 2014), http://www.occupy.com/article/protesters-beware-don%E2%80%99t-get-stung-stingrays [http://perma.cc/L5F4-JKPX].

  4. See Cyrus Farivar, DHS Now Needs Warrant for Stingray Use, but Not When Protecting President, ArsTechnica (Oct. 21, 2015, 10:30 PM), http://arstechnica.com/tech-policy/2015/10/dhs-now-needs-warrant-for-stingray-use-but-not-when-protecting-president/ [http://perma.cc/6KK7-CARA].

  5. See, e.g., Greenemeier, supra note 6 (finding the Baltimore Police Department signed a nondisclosure agreement with the FBI that instructed prosecutors to drop cases rather than reveal the department’s use of the stingray); Justin Fenton, Baltimore Police used secret technology to track cellphones in thousands of cases, Baltimore Sun (Apr. 9, 2015), http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-case-20150408-story.html [http://perma.cc/R2S3-5CYP] (reporting prosecutors in Baltimore withdrew evidence obtained through the use of a Stingray before a judge could hold a detective in contempt of court for not answering questions); St. Louis prosecutors drop charges before spy tool used in arrests is revealed in court, RT (Apr. 20, 2015, 6:37 PM), https://www.rt.com/usa/251345-missouri-stingray-charges-dropped/ [http://perma.cc/NN3D-XZ2E] (“Prosecutors in St. Louis, Missouri have dropped more than a dozen charges against three defendants accused of participating in a string of robberies in late 2013 on the eve of a court hearing on the police department’s use of a controversial spy tool.”).

  6. See Orin Kerr, The Rule of Lenity As a Tool to Regulate National Security Surveillance, LAWFARE (Nov. 5, 2013, 3:20 PM), http://www.lawfareblog.com/2013/11/the-rule-of-lenity-as-a-tool-to-regulate-to-national-security-surveillance/ [http://perma.cc/SH3L-CGLH].

William Scott Kim

W. Scott Kim is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.