In a conference committee technology and privacy rights, will be tangling soon if a bill passes in the Minnesota House on Tuesday. The debate is centering on three areas: authority of law enforcement to obtain and use records from cellphone towers without a search warrant, ability to reel in a troves of user data collected on innocent people as well as a target when government uses such surveillance devices as Kingfish, Amberjack, Fishawk, Porpoise and Stingray without a search warrant, and whether the search by government of your cell phone location data is a “search and seizure” under the 4th Amendment.
The House bill has a probable cause court order standard not a “search warrant based on probable cause” which is a big difference for the protection of Minnesotans privacy and liberties. The search warrant requirement passed in two House committees, but not in a third.
In just the use of the Stingray/Kingfish law enforcement authorities has tapped and used it over 600 times plus in the last several years. Law enforcement agencies do “cell phone tower” dumps where they collect tower location records on innocent people along with the targeted individual. Using such surveillance devices as Stingray, activities with “tower dumps”, and getting easy access to your cell/smart phone record by government shoveling up cellphone communications across a broad spectrum of Minnesotans, there should be Fourth Amendment statutory protections, a search warrant
The law now allows law enforcement to tell a judge the cellphone information is relevant to their criminal investigation for a court order. It is important to have a stricter and higher legal standard, with government required to show probable cause that a crime was or is being committed and obtain a search warrant. But to obtain the search warrant is what Minnesota law enforcement lobbyists and authorities do not want.
Law enforcement has argued no need for search warrant and does not want it even mentioned in the bill because they do not believe it is a “search” or breach of a “reasonable expectation of privacy” I on the other hand do believe that Minnesotans through their elected officials are prepared to recognize a expectation of privacy in their location that mandates government obtains a search warrant. When I ask law enforcement officials and lobbyists, why it not an invasion of of privacy under the 4th Amendment and why a search warrant should not be used to track and collect cell/smart phone location. I am basically told there is no expectation of privacy, the data and records are held in third parties, and there is no need for a 4th Amendment search warrant.
With disclosure several months ago that the Bureau of Criminal Apprehension spent more than $600,000 of general fund monies on the Stingray/Kingfish, there has been a heightened scrutiny on the use of this technology. I have done several data requests which I have reviewed , but also have been denied.
The Bureau has denied they do real time interception of phone conversations and text messages. But their honesty and openness on this overall topic has not been strictly open and direct with policymakers and the public. In a published story, Harris Corporation does have equipment which allows for interception of phone conversations and text messages which they also promote. “Procurement documents indicate that the Stingray can also be used with software called “FishHawk,” (PDF) which boosts the device’s capabilities by allowing authorities to eavesdrop on conversations. Other similar Harris software includes “Porpoise,” which is sold on a USB drive and is designed to be installed on a laptop and used in conjunction with transceivers—possibly including the Stingray—for surveillance of text message.” (Meet the machines that steal your phone’s data)
As some of you may know who may read recent posts, the Stingray is a device that is very portable which emits signals to where your smart phones may be while you are in your home or going down the street and pairs up with the digital signals of your personal smart/cell phone. And by magic the revelation of where you are is gotten by law enforcement. But a negative that happens also is that innocent and law abiding individuals data is inhaled and the people do not know that.
So why is law enforcement particularly BCA so adamant about not having to get a search warrant to use the Stingray and get access to Minnesotans cell phone location?
(1) Law enforcement does not believe that Minnesotans should have the highest protection of the privacy from our Federal and State Constitutions, need for a search warrant under the 4th Amendment when they want access to your cell phone records or when surveillance is done on you in real time with such devices as Stingray.
(2) Law enforcement believes you have no expectation of privacy guaranteed by the 4th Amendment when records are held about your movements and associations by third parties such as Verizon and other communication carriers through the use of you cell/smart phone.
(3) Law enforcement does not want well-established body of case law that deals with search warrant and protects Minnesotans from intrusive behavior that compromises our liberty and privacy.
(4) Law enforcement wants to shield information about new technologies being used for surveillance purposes, therefore no search warrant. As a recent Appeals Court in Florida found out. Law enforcement “did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal.”
(5) Law enforcement by having to do a search warrant must give to the independent judge specifics and particularities about “search and seizure” and how it interacts with privacy rights guaranteed by the Fourth Amendment. In the context of cell phone surveillance, it would mean the particular cell phone they are following and shadowing and what information they want. Not having specifics can be a difference between doing real time surveillance of a smart phone’s location and trailing a phone’s location for any time period.
A search warrant requirement is much more than just inserting the words probable cause. A search warrant requires specificity and also allows a judge greater authority to supervise the execution of the warrant. This is particularly important when law enforcement uses the Stingray/Kingfish and real time surveillance of individuals. The use of technology and “tower dumps” allows for collection of innocent people’s communication and location data.
For those concerned about what Minnesota law enforcement and other agencies might do with the data that your personal device in your pocket produces without Fourth Amendment protections, just think of the places you go to—-the data can reveal an individuals associations and politics or as Justice Sotomayor stated people do not “expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”
Minor differences of a court order based on probable cause with no mention of stating it is a search warrant in statute can be minor but can be constitutionally significant and also compromise an individuals Fourth Amendment privacy and liberty interests.