A bill introduced in the Rhode Island House would require a judicial order for the use of “stingrays” to track the location of phones and sweep up electronic communications. Passage of the bill would not only protect privacy in the state, but would also hinder one aspect of the federal surveillance state.
Rep. Blake Filippi (I-36), along with a bipartisan coalition of four representatives, introduced House Bill 5393 (HB5393) on Feb. 3. 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.
HB5393 would require law enforcement agencies to obtain a judicial order before using a stingray device based on the same requirements currently in place for trace/trap devices and pen registers. A judge could authorize the use of a stingray device if police show the information they hope to collect is relevant and necessary to an ongoing criminal investigation. Under the current law governing pen registers and trace/trap device, law enforcement must provide the judge with specific information designed to protect innocent people.
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 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.”