1 00:00:00,160 --> 00:00:03,960 Speaker 1: Is your smart TV spying on you? Our authorities listening 2 00:00:03,960 --> 00:00:07,880 Speaker 1: to your conversations on your smartphone? And what are those 3 00:00:08,000 --> 00:00:11,600 Speaker 1: voice activated smart devices in your house learning about you? 4 00:00:12,039 --> 00:00:16,280 Speaker 1: With attensions concentrated on these perhaps too smart tech devices, 5 00:00:16,600 --> 00:00:19,799 Speaker 1: it seems concerns have faded about police tracking down the 6 00:00:19,840 --> 00:00:23,079 Speaker 1: location of a regular cell phone. After all, even in 7 00:00:23,120 --> 00:00:25,959 Speaker 1: the movies, suspects know enough to throw away their cell 8 00:00:26,000 --> 00:00:29,000 Speaker 1: phones so they won't be tracked. But the DC Circuit 9 00:00:29,040 --> 00:00:32,360 Speaker 1: Court of Appeals is concerned about the DC police using 10 00:00:32,440 --> 00:00:36,720 Speaker 1: cell phone surveillance technology to track down a suspect's location 11 00:00:36,760 --> 00:00:40,919 Speaker 1: in ten without a warrant. The Fourth Amendment still exists, 12 00:00:40,920 --> 00:00:45,440 Speaker 1: and the defendant says his constitutional rights were violated. Joining us. 13 00:00:45,440 --> 00:00:48,360 Speaker 1: As former federal prosecutor Robert Min's head of the white 14 00:00:48,360 --> 00:00:52,560 Speaker 1: collar and government investigations practice at McCarter and English, Bob 15 00:00:52,600 --> 00:00:54,880 Speaker 1: tell us a little bit about the facts of the case, 16 00:00:56,640 --> 00:00:59,840 Speaker 1: sure with this case dealt with a defendant who was 17 00:01:00,000 --> 00:01:03,640 Speaker 1: sitting in his car in northeast Washington and had with 18 00:01:03,720 --> 00:01:07,199 Speaker 1: him his cell phone, a prepaid cell phone. He also 19 00:01:07,240 --> 00:01:09,680 Speaker 1: had with him four stolen cell phones that he had 20 00:01:09,720 --> 00:01:14,720 Speaker 1: taken from women whom he had sexually assaulted. The police 21 00:01:14,760 --> 00:01:18,560 Speaker 1: were trying to locate him. They used information from the 22 00:01:18,560 --> 00:01:22,120 Speaker 1: telephone company to get his general location, but then in 23 00:01:22,200 --> 00:01:25,600 Speaker 1: order to pinpoint exactly where where he was and they 24 00:01:25,640 --> 00:01:28,840 Speaker 1: can arrest, they used something called a sting ray device, 25 00:01:29,360 --> 00:01:32,720 Speaker 1: which is something that tricks a cell phone into believing 26 00:01:32,760 --> 00:01:35,200 Speaker 1: that it is a cell tower. And so when your 27 00:01:35,200 --> 00:01:38,520 Speaker 1: cell phone emits information to locate a cell tower to 28 00:01:38,520 --> 00:01:41,200 Speaker 1: make a phone call, the string array device sends a 29 00:01:41,240 --> 00:01:44,560 Speaker 1: message back and allows the police to locate within a 30 00:01:44,600 --> 00:01:47,160 Speaker 1: matter of feat exactly where your phone is at that 31 00:01:47,240 --> 00:01:51,480 Speaker 1: particular point in time. So the court has been is 32 00:01:51,520 --> 00:01:53,760 Speaker 1: considering this case and whether it was constitutional for the 33 00:01:53,760 --> 00:01:57,080 Speaker 1: police to use it. Had explain to us what legally 34 00:01:57,160 --> 00:02:02,160 Speaker 1: how the court is looking at this question, sure, Michael, Well, 35 00:02:02,200 --> 00:02:04,640 Speaker 1: the case really comes down to the question of whether 36 00:02:04,720 --> 00:02:07,960 Speaker 1: or not the use of that stingray device without obtaining 37 00:02:08,000 --> 00:02:11,400 Speaker 1: a search warrant to the Fourth Amendment violation. And it 38 00:02:11,639 --> 00:02:14,799 Speaker 1: turns on the question of whether there's a reasonable expectation 39 00:02:14,840 --> 00:02:19,280 Speaker 1: of privacy as somebody has uh in simply carrying their 40 00:02:19,320 --> 00:02:23,160 Speaker 1: cell phone around, and whether the police, when they use 41 00:02:23,280 --> 00:02:26,880 Speaker 1: the sting ray device which tricks your phone into revealing 42 00:02:26,919 --> 00:02:31,400 Speaker 1: its location whether that is essentially a search and requires 43 00:02:31,400 --> 00:02:34,040 Speaker 1: police to go and get a warrant before using a 44 00:02:34,040 --> 00:02:38,400 Speaker 1: device like that. Bob Judge Phyllis Thompson said, it's difficult 45 00:02:38,400 --> 00:02:40,960 Speaker 1: for me to see that he has a reasonable expectation 46 00:02:41,040 --> 00:02:45,960 Speaker 1: of privacy because the defendant Jones was carrying stolen cell 47 00:02:46,000 --> 00:02:49,679 Speaker 1: phones and there was an expectation that someone would try 48 00:02:49,720 --> 00:02:53,440 Speaker 1: to find them or him. Do the stolen goods change 49 00:02:53,600 --> 00:02:58,320 Speaker 1: the calculus, Well, they might. For that judge, there was 50 00:02:58,360 --> 00:03:01,920 Speaker 1: a three judge panel heard the argument. This is only 51 00:03:01,919 --> 00:03:05,080 Speaker 1: the second Court of Appeals anywhere in the country that 52 00:03:05,160 --> 00:03:08,200 Speaker 1: has heard argument on this sting ray device, and the 53 00:03:08,240 --> 00:03:11,320 Speaker 1: fact of this case, frankly, are not particularly good for 54 00:03:11,360 --> 00:03:14,760 Speaker 1: the defense because not only was the defendant carrying his 55 00:03:14,840 --> 00:03:18,079 Speaker 1: personal cell phone, but he also was carrying cell phones 56 00:03:18,120 --> 00:03:20,760 Speaker 1: that he'd stolen from his victims. And so one of 57 00:03:20,760 --> 00:03:23,919 Speaker 1: the things prosecutors have argued is that if the police 58 00:03:24,200 --> 00:03:27,760 Speaker 1: were not able to locate him using his own personal 59 00:03:27,760 --> 00:03:30,840 Speaker 1: cell phone, which raises his Fourth Amendment issue, they certainly 60 00:03:30,840 --> 00:03:34,240 Speaker 1: would be able to locate him by tracking the victims 61 00:03:34,320 --> 00:03:38,160 Speaker 1: phones because he had no privacy interests in the victims 62 00:03:38,160 --> 00:03:41,360 Speaker 1: phones that he took after he assaulted these women, so 63 00:03:41,440 --> 00:03:44,320 Speaker 1: that may complicate this case um as well as the 64 00:03:44,360 --> 00:03:46,760 Speaker 1: fact that the defendant was on a public street as 65 00:03:46,760 --> 00:03:49,360 Speaker 1: opposed to being in a home where the expectation of 66 00:03:49,400 --> 00:03:52,880 Speaker 1: privacy is also diminished. You know, when when we have 67 00:03:53,200 --> 00:03:56,880 Speaker 1: wire taps and things on traditional phone lines, there's complicated 68 00:03:56,880 --> 00:04:00,360 Speaker 1: statutory structures at the state and federal level about that, 69 00:04:01,360 --> 00:04:03,560 Speaker 1: and we seem to be struggling with the same kinds 70 00:04:03,560 --> 00:04:07,760 Speaker 1: of issues in the in the you know, internet and 71 00:04:07,920 --> 00:04:11,200 Speaker 1: cell phone era. Is this the kind of thing that 72 00:04:11,360 --> 00:04:13,280 Speaker 1: really the courts should be dealing with or should this 73 00:04:13,320 --> 00:04:16,160 Speaker 1: be something that is dealt with statutorially so that we 74 00:04:16,200 --> 00:04:18,760 Speaker 1: can figure out what we really think about these complicated 75 00:04:18,760 --> 00:04:23,480 Speaker 1: privacy questions. Well, the privacy rights advocates who have jumped 76 00:04:23,480 --> 00:04:26,320 Speaker 1: in on this case are making that very argument to 77 00:04:26,360 --> 00:04:30,040 Speaker 1: say that it's really something that Congress should address because 78 00:04:30,480 --> 00:04:35,560 Speaker 1: it's a situation where technology and privacy rights really come 79 00:04:35,600 --> 00:04:39,679 Speaker 1: together in a way that has produced inconsistent rulings around 80 00:04:39,680 --> 00:04:42,160 Speaker 1: the country, and they're arguing that this is something that 81 00:04:42,240 --> 00:04:44,880 Speaker 1: Congress should look at because it turns on the very 82 00:04:44,960 --> 00:04:48,320 Speaker 1: complicated question of when you turn on your cell phone, 83 00:04:48,800 --> 00:04:52,840 Speaker 1: do you by simply turning it on relinquish your privacy right? 84 00:04:53,080 --> 00:04:55,640 Speaker 1: And is it fair for police without a warrant to 85 00:04:55,880 --> 00:04:59,760 Speaker 1: turn your cell phone into what is essentially a tracking device. 86 00:05:00,160 --> 00:05:03,680 Speaker 1: And that's something that privacy groups have said Congress ought 87 00:05:03,720 --> 00:05:05,800 Speaker 1: to weigh in on so that there's a consistent position 88 00:05:05,800 --> 00:05:08,560 Speaker 1: around the country and we don't have a patchwork of 89 00:05:08,760 --> 00:05:12,400 Speaker 1: court cases around the country with inconsistent decisions. Bob, what 90 00:05:12,520 --> 00:05:17,560 Speaker 1: about the cases that just involve cell phone towers. Are 91 00:05:17,600 --> 00:05:23,000 Speaker 1: police allowed to just use the cell phone towers to track? Well, 92 00:05:23,120 --> 00:05:26,040 Speaker 1: police have use cell phone towers and in those cases 93 00:05:26,440 --> 00:05:30,359 Speaker 1: courts have said that there is no expectation of privacy 94 00:05:30,400 --> 00:05:33,919 Speaker 1: there because you're making a phone call and by actually 95 00:05:33,960 --> 00:05:38,560 Speaker 1: making the call, you're relinquishing your your privacy right. So 96 00:05:38,640 --> 00:05:41,080 Speaker 1: you know, you know that your phone is connecting with 97 00:05:41,160 --> 00:05:44,159 Speaker 1: a cell phone tower, and therefore it's possible for somebody 98 00:05:44,200 --> 00:05:49,000 Speaker 1: to use towers to locate your particular location. Here, there 99 00:05:49,040 --> 00:05:50,960 Speaker 1: was no call that was being made. It was this 100 00:05:51,440 --> 00:05:54,600 Speaker 1: sting ray device that simply tricked the phone into giving 101 00:05:54,640 --> 00:05:57,320 Speaker 1: away its location. And that's why it raises a slightly 102 00:05:57,360 --> 00:06:01,800 Speaker 1: different legal question, Bob. There was a decision by an 103 00:06:01,839 --> 00:06:05,880 Speaker 1: appellate court in Maryland. What did they say, Well, the 104 00:06:05,920 --> 00:06:09,280 Speaker 1: Maryland Court came down on the side of the privacy 105 00:06:09,440 --> 00:06:13,119 Speaker 1: groups and said that police ought to get a search 106 00:06:13,160 --> 00:06:16,640 Speaker 1: warrant here. They said, there absolutely is a search that 107 00:06:16,800 --> 00:06:20,560 Speaker 1: is conducted when somebody um uses a cell phone and 108 00:06:20,680 --> 00:06:23,480 Speaker 1: the police use this sting ray device. And I think 109 00:06:23,520 --> 00:06:25,919 Speaker 1: one of the things that troubled the Maryland court is 110 00:06:25,960 --> 00:06:28,840 Speaker 1: that a police have been using these stingray devices for 111 00:06:29,040 --> 00:06:32,640 Speaker 1: years and been very secretive about it, and in fact 112 00:06:32,680 --> 00:06:36,479 Speaker 1: have entered into agreements with the manufacturers of this device 113 00:06:36,880 --> 00:06:40,039 Speaker 1: not to disclose that they are using these devices, and 114 00:06:40,080 --> 00:06:42,120 Speaker 1: in some cases have gone so far as to dismiss 115 00:06:42,200 --> 00:06:45,200 Speaker 1: cases rather than to disclose to the defense and the 116 00:06:45,279 --> 00:06:48,240 Speaker 1: courts that a stingray device was used. The Maryland courts 117 00:06:48,240 --> 00:06:51,479 Speaker 1: found that troubling and probably was a factor in the 118 00:06:51,480 --> 00:06:55,239 Speaker 1: court deciding that a Fourth Amendment search had taken place. Bob, 119 00:06:55,240 --> 00:06:58,480 Speaker 1: that was the most surprising thing to me in this case, 120 00:06:58,720 --> 00:07:02,680 Speaker 1: reading about how they've signed agreements with the FBI and 121 00:07:02,800 --> 00:07:06,600 Speaker 1: device manufacturers to not disclose the existence to the public 122 00:07:06,680 --> 00:07:12,960 Speaker 1: the courts or defense counsel. Is that legal, Well, it's 123 00:07:13,080 --> 00:07:17,000 Speaker 1: legal if they ultimately decided to drop cases rather than 124 00:07:17,080 --> 00:07:20,280 Speaker 1: to disclose the information. But I can see why a 125 00:07:20,360 --> 00:07:24,920 Speaker 1: court would find it troubling because those agreements, which included 126 00:07:24,960 --> 00:07:28,560 Speaker 1: the FBI and device manufacturers, or agreements that said that 127 00:07:28,600 --> 00:07:30,760 Speaker 1: they wouldn't disclose to the public, to the courts or 128 00:07:30,800 --> 00:07:34,480 Speaker 1: to defense counsel that these devices were being used. And 129 00:07:34,560 --> 00:07:37,120 Speaker 1: that's one of the reasons privacy advocates are very alarmed 130 00:07:37,160 --> 00:07:39,760 Speaker 1: by the use of these devices and the agreements that 131 00:07:39,840 --> 00:07:43,200 Speaker 1: law enforcement have entered into into in connection with these devices. 132 00:07:43,680 --> 00:07:46,920 Speaker 1: All right, well, we keep finding new ways that we're 133 00:07:46,960 --> 00:07:49,080 Speaker 1: being tracked, and pretty soon, I don't think we're going 134 00:07:49,120 --> 00:07:51,960 Speaker 1: to be surprised by these anymore. Thanks for joining us. 135 00:07:52,000 --> 00:07:54,560 Speaker 1: That's from our federal prosecutor, Robert Menz. He's the head 136 00:07:54,600 --> 00:07:57,680 Speaker 1: of the white collar and government Investigations practice at McCarter 137 00:07:57,800 --> 00:07:58,880 Speaker 1: and English