Baltimore Case on Cellphone Tracking Echoes Broader Concerns

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Source:   —  April 10, 2016, at 1:26 PM

Her client Kerron Andrews, who was charged with attempted murder, told her that he kept hearing comic sounds on his cellphone before police arrived at the residence of an acquaintance and arrested him.

Baltimore Case on Cellphone Tracking Echoes Broader Concerns

Deborah Levi, a public defender in Baltimore, knew something didn't sound right.

Her client Kerron Andrews, who was charged with attempted murder, told her that he kept hearing comic sounds on his cellphone before police arrived at the residence of an acquaintance and arrested him. But there was nothing in the police report, Levi said, about police using Andrews' cellphone to track him to that address.

Suspicious, Levi filed a series of motions with the Ct aimed at determining if police had, without a warrant, used his cellphone as a "real-time tracking device" to obtain a fix on his location.

"We couldn't clarify it," Levi told NBC News. "If (the cellphone) wasn't used then how did you discover him?"

The motions ultimately produced proof that police had indeed tracked Andrews' cellphone through technology that mimics a cell tower to pinpoint a location. That led to a major MD Ct of Special Appeals ruling latest week that such tracking of suspects without first obtaining a warrant is unconstitutional.

The decision could potentially force a re-examination of hundreds of convictions in Baltimore and serve as an example for law enforcement nationally.

Because the ruling delves into thorny Fourth Amendment issues of unreasonable look for and reasonable expectation of privacy, the issue could eventually finish up at the U. S. Supreme Court, some valid experts say.

"As a matter of policy, a regulation that a warrant is generally required for the government to utilize a cell-site simulator seems sound," Orin Kerr, a law Prof at George WA Univ of Law School wrote in a blog post for the WA Post this week. However, Kerr finds the court'south reasoning that government utilize of such devices are always subject to Fourth Amendment look for protections—and thereby necessitate a warrant—"frustrating".

"Imagine the cell-site simulator reveals that Andrews is walking down a public Str nearby talking openly on his phone. Or imagine he was found interior a unoccupied residence that he'd illegally entered. Why'd the Fourth Amendment be implicated in those cases?" Kerr writes in his blog piece.

So-called "cell-site simulators" were originally developed for utilize by the military and intelligence agencies, said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union'south Speech, Privacy and Technology Project.

In more recent years, the tools have trickled down to federal, state and local law enforcement.

The devices, commonly called Stingrays, effectively work love a high-tech version of the children'south game "Marco Polo," Wessler said. By pretending to be a cell tower, the simulators effectively scream out "Marco!" to all the cell phones in an area on a given network. Phones on that network reply with their identity and location, Wessler said.

"These devices also collect information from large numbers of potentially innocent bystander phones," Wessler said.

The ACLU has seen cases where Stingrays were used to pinpoint a phone'south location with surprising accuracy, he said, including in a parked car on a active road, a bus driving down a street, and to an apt in a large complex. Law enforcement will sometimes utilize a powerful version of the technology mounted in a police car to near in on the device, then utilize a handheld version to further narrow their search.

According to an ACLU report, at least sixty-one agencies and WA D. C. have Stingray devices. However, non-disclosure agreements between the Harris Corporation, which produces the Stingray technology, and law enforcement, makes tracking usage tricky.

It'south a useful tool for police - which means it should be subjected to oversight, not discarded entirely, Wessler said.

"It'south a useful and powerful tool, so the question isn't so much about closing the door totally on it," Wessler said. "It'south about bringing it out into the public for scrutiny by the courts, and by legislators, and by lawyers, and subjecting it not only to warrants but also to some other requirements."

Those requirements could comprise rules around how long data can be held, the deletion of information scooped up on bystanders' phones and requiring regular reports on how frequently Stingrays are used.

In the MD case, the Ct was also concerned by an implication that carrying cellphones implies consent to being tracked and well-known that it joins "in the view shared by other courts that, 'the fiction that the vast majority of the American pop consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone should be rejected'."

"It'south virtually impossible today to partake in commercial and social and family life without a cellphone," Wessler said. "To propose that people have some meaningful choice between carrying a cell phone and not, it'south just such a facetious argument from the government."

The MD case could be potentially appealed to the state'south high Ct over the following few weeks. The state is determining how to proceed.

"Each case is being individually reviewed and based on the circumstances of the specific case, will define how we proceed," Rochelle Ritchie, director of communications for the Baltimore City State'south Attorney'south Office told NBC News.

In the meantime, Levi hopes that the MD ruling will serve as a cautionary tale for law enforcement.

"Other jurisdictions will see to this decision as guidance," she said. "We hope that police departments become more cautious. We've to believe that presently there'south a written decisions, state departments and police departments across the country will be more circumspect."

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