As the use of cell phones and other mobile devices has become increasingly common, police have looked for ways to make use of the information that mobile devices routinely emit. The point at which attempts to access data from mobile devices become a “search,” within the meaning of the Fourth Amendment, remains a matter of debate, but some types of technology clearly seem more intrusive than others. Devices known as cell-site simulators, also known by the trade name “stingrays,” are particularly controversial. Rather than obtain data that a mobile device has already sent out, a stingray essentially tricks a mobile device into sending out data by mimicking a cell tower. Courts around the country, most recently in Maryland, have ruled that this constitutes a search requiring a warrant.
A key question in determining whether a particular police activity requires a warrant is whether it involves something in which people have a “reasonable expectation of privacy.” The “third party doctrine” holds that people have no reasonable expectation of privacy in information that they willingly provide to someone else. The U.S. Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), for example, that police did not need a warrant to obtain a record of someone’s phone calls, known as a pen register, from the phone company, since the person voluntarily conveyed that information to the phone company by dialing the numbers.
Technology has changed a great deal since Smith was decided, but it seems possible to draw a clear distinction between similar modern activities, which still include phone calls, and activities that do not necessarily reveal information to others. Federal law authorizes law enforcement to use pen registers or trap and trace devices, which log the numbers of incoming phone calls, if they obtain a warrant or a court order. 18 U.S.C. § 3121 et seq.
Pen registers and trap and trace devices are essentially passive forms of surveilling a person based on cell phone data. Stingray devices arguably go beyond this by influencing the functioning of mobile devices in order to obtain data. It is similar to the difference between the “plain view” exception to the Fourth Amendment, which allows police to seize contraband that they can see from a reasonable vantage point, and a more intrusive search that requires a warrant.
Texas courts have generally been unreceptive to stingrays. In a case that pre-dates stingray technology, a federal judge granted the government’s request for a cell phone company’s records showing cell site data, which shows approximately where a person’s cell phone is at a given time, but it denied a request for “prospective data” that would allow law enforcement to track location in “real time.” In re Application for Pen Register and Trap/Trace, 396 F.Supp.2d 747 (S.D. Tex. 2005); see also In re Application for Order Auth. Release of Cell Site Location Records, 31 F.Supp.3d 889 (S.D. Tex. 2014). A Texas court has also held that the pen register statute does not allow the authorization of stingrays. In re Application of the U.S. for an Order, 890 F.Supp.2d 747 (S.D. Tex. 2012).
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
Michael J. Brown is a board-certified criminal defense attorney who practices in West Texas. For more than two decades, he has defended people against alleged criminal charges in both state and federal courts. Contact us today online or at (432) 687-5157 to schedule a confidential consultation with a knowledgeable and skilled advocate for criminal justice.
More Blog Posts:
Appellate Courts Split on Question of Cell Phone Tracking Technology and the Fourth Amendment, Texas Criminal Lawyer Blog, February 26, 2016
FBI Use of Unmanned Drones for Aerial Surveillance Raises Fourth Amendment Concerns, Texas Criminal Lawyer Blog, September 9, 2015
Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation, Texas Criminal Lawyer Blog, May 15, 2015