WEBVTT - DC Court Ready to Rule on Cellphone Tracking Casse (Audio)

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<v Speaker 1>Is your smart TV spying on you? Our authorities listening

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<v Speaker 1>to your conversations on your smartphone? And what are those

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<v Speaker 1>voice activated smart devices in your house learning about you?

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<v Speaker 1>With attensions concentrated on these perhaps too smart tech devices,

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<v Speaker 1>it seems concerns have faded about police tracking down the

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<v Speaker 1>location of a regular cell phone. After all, even in

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<v Speaker 1>the movies, suspects know enough to throw away their cell

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<v Speaker 1>phones so they won't be tracked. But the DC Circuit

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<v Speaker 1>Court of Appeals is concerned about the DC police using

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<v Speaker 1>cell phone surveillance technology to track down a suspect's location

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<v Speaker 1>in ten without a warrant. The Fourth Amendment still exists,

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<v Speaker 1>and the defendant says his constitutional rights were violated. Joining us.

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<v Speaker 1>As former federal prosecutor Robert Min's head of the white

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<v Speaker 1>collar and government investigations practice at McCarter and English, Bob

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<v Speaker 1>tell us a little bit about the facts of the case,

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<v Speaker 1>sure with this case dealt with a defendant who was

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<v Speaker 1>sitting in his car in northeast Washington and had with

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<v Speaker 1>him his cell phone, a prepaid cell phone. He also

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<v Speaker 1>had with him four stolen cell phones that he had

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<v Speaker 1>taken from women whom he had sexually assaulted. The police

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<v Speaker 1>were trying to locate him. They used information from the

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<v Speaker 1>telephone company to get his general location, but then in

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<v Speaker 1>order to pinpoint exactly where where he was and they

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<v Speaker 1>can arrest, they used something called a sting ray device,

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<v Speaker 1>which is something that tricks a cell phone into believing

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<v Speaker 1>that it is a cell tower. And so when your

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<v Speaker 1>cell phone emits information to locate a cell tower to

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<v Speaker 1>make a phone call, the string array device sends a

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<v Speaker 1>message back and allows the police to locate within a

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<v Speaker 1>matter of feat exactly where your phone is at that

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<v Speaker 1>particular point in time. So the court has been is

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<v Speaker 1>considering this case and whether it was constitutional for the

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<v Speaker 1>police to use it. Had explain to us what legally

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<v Speaker 1>how the court is looking at this question, sure, Michael, Well,

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<v Speaker 1>the case really comes down to the question of whether

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<v Speaker 1>or not the use of that stingray device without obtaining

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<v Speaker 1>a search warrant to the Fourth Amendment violation. And it

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<v Speaker 1>turns on the question of whether there's a reasonable expectation

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<v Speaker 1>of privacy as somebody has uh in simply carrying their

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<v Speaker 1>cell phone around, and whether the police, when they use

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<v Speaker 1>the sting ray device which tricks your phone into revealing

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<v Speaker 1>its location whether that is essentially a search and requires

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<v Speaker 1>police to go and get a warrant before using a

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<v Speaker 1>device like that. Bob Judge Phyllis Thompson said, it's difficult

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<v Speaker 1>for me to see that he has a reasonable expectation

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<v Speaker 1>of privacy because the defendant Jones was carrying stolen cell

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<v Speaker 1>phones and there was an expectation that someone would try

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<v Speaker 1>to find them or him. Do the stolen goods change

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<v Speaker 1>the calculus, Well, they might. For that judge, there was

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<v Speaker 1>a three judge panel heard the argument. This is only

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<v Speaker 1>the second Court of Appeals anywhere in the country that

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<v Speaker 1>has heard argument on this sting ray device, and the

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<v Speaker 1>fact of this case, frankly, are not particularly good for

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<v Speaker 1>the defense because not only was the defendant carrying his

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<v Speaker 1>personal cell phone, but he also was carrying cell phones

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<v Speaker 1>that he'd stolen from his victims. And so one of

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<v Speaker 1>the things prosecutors have argued is that if the police

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<v Speaker 1>were not able to locate him using his own personal

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<v Speaker 1>cell phone, which raises his Fourth Amendment issue, they certainly

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<v Speaker 1>would be able to locate him by tracking the victims

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<v Speaker 1>phones because he had no privacy interests in the victims

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<v Speaker 1>phones that he took after he assaulted these women, so

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<v Speaker 1>that may complicate this case um as well as the

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<v Speaker 1>fact that the defendant was on a public street as

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<v Speaker 1>opposed to being in a home where the expectation of

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<v Speaker 1>privacy is also diminished. You know, when when we have

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<v Speaker 1>wire taps and things on traditional phone lines, there's complicated

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<v Speaker 1>statutory structures at the state and federal level about that,

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<v Speaker 1>and we seem to be struggling with the same kinds

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<v Speaker 1>of issues in the in the you know, internet and

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<v Speaker 1>cell phone era. Is this the kind of thing that

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<v Speaker 1>really the courts should be dealing with or should this

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<v Speaker 1>be something that is dealt with statutorially so that we

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<v Speaker 1>can figure out what we really think about these complicated

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<v Speaker 1>privacy questions. Well, the privacy rights advocates who have jumped

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<v Speaker 1>in on this case are making that very argument to

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<v Speaker 1>say that it's really something that Congress should address because

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<v Speaker 1>it's a situation where technology and privacy rights really come

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<v Speaker 1>together in a way that has produced inconsistent rulings around

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<v Speaker 1>the country, and they're arguing that this is something that

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<v Speaker 1>Congress should look at because it turns on the very

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<v Speaker 1>complicated question of when you turn on your cell phone,

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<v Speaker 1>do you by simply turning it on relinquish your privacy right?

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<v Speaker 1>And is it fair for police without a warrant to

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<v Speaker 1>turn your cell phone into what is essentially a tracking device.

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<v Speaker 1>And that's something that privacy groups have said Congress ought

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<v Speaker 1>to weigh in on so that there's a consistent position

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<v Speaker 1>around the country and we don't have a patchwork of

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<v Speaker 1>court cases around the country with inconsistent decisions. Bob, what

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<v Speaker 1>about the cases that just involve cell phone towers. Are

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<v Speaker 1>police allowed to just use the cell phone towers to track? Well,

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<v Speaker 1>police have use cell phone towers and in those cases

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<v Speaker 1>courts have said that there is no expectation of privacy

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<v Speaker 1>there because you're making a phone call and by actually

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<v Speaker 1>making the call, you're relinquishing your your privacy right. So

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<v Speaker 1>you know, you know that your phone is connecting with

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<v Speaker 1>a cell phone tower, and therefore it's possible for somebody

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<v Speaker 1>to use towers to locate your particular location. Here, there

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<v Speaker 1>was no call that was being made. It was this

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<v Speaker 1>sting ray device that simply tricked the phone into giving

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<v Speaker 1>away its location. And that's why it raises a slightly

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<v Speaker 1>different legal question, Bob. There was a decision by an

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<v Speaker 1>appellate court in Maryland. What did they say, Well, the

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<v Speaker 1>Maryland Court came down on the side of the privacy

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<v Speaker 1>groups and said that police ought to get a search

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<v Speaker 1>warrant here. They said, there absolutely is a search that

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<v Speaker 1>is conducted when somebody um uses a cell phone and

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<v Speaker 1>the police use this sting ray device. And I think

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<v Speaker 1>one of the things that troubled the Maryland court is

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<v Speaker 1>that a police have been using these stingray devices for

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<v Speaker 1>years and been very secretive about it, and in fact

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<v Speaker 1>have entered into agreements with the manufacturers of this device

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<v Speaker 1>not to disclose that they are using these devices, and

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<v Speaker 1>in some cases have gone so far as to dismiss

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<v Speaker 1>cases rather than to disclose to the defense and the

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<v Speaker 1>courts that a stingray device was used. The Maryland courts

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<v Speaker 1>found that troubling and probably was a factor in the

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<v Speaker 1>court deciding that a Fourth Amendment search had taken place. Bob,

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<v Speaker 1>that was the most surprising thing to me in this case,

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<v Speaker 1>reading about how they've signed agreements with the FBI and

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<v Speaker 1>device manufacturers to not disclose the existence to the public

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<v Speaker 1>the courts or defense counsel. Is that legal, Well, it's

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<v Speaker 1>legal if they ultimately decided to drop cases rather than

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<v Speaker 1>to disclose the information. But I can see why a

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<v Speaker 1>court would find it troubling because those agreements, which included

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<v Speaker 1>the FBI and device manufacturers, or agreements that said that

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<v Speaker 1>they wouldn't disclose to the public, to the courts or

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<v Speaker 1>to defense counsel that these devices were being used. And

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<v Speaker 1>that's one of the reasons privacy advocates are very alarmed

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<v Speaker 1>by the use of these devices and the agreements that

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<v Speaker 1>law enforcement have entered into into in connection with these devices.

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<v Speaker 1>All right, well, we keep finding new ways that we're

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<v Speaker 1>being tracked, and pretty soon, I don't think we're going

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<v Speaker 1>to be surprised by these anymore. Thanks for joining us.

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<v Speaker 1>That's from our federal prosecutor, Robert Menz. He's the head

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<v Speaker 1>of the white collar and government Investigations practice at McCarter

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<v Speaker 1>and English