Speaker 1: Is your smart TV spying on you? Our authorities listening
Speaker 1: to your conversations on your smartphone? And what are those
Speaker 1: voice activated smart devices in your house learning about you?
Speaker 1: With attensions concentrated on these perhaps too smart tech devices,
Speaker 1: it seems concerns have faded about police tracking down the
Speaker 1: location of a regular cell phone. After all, even in
Speaker 1: the movies, suspects know enough to throw away their cell
Speaker 1: phones so they won't be tracked. But the DC Circuit
Speaker 1: Court of Appeals is concerned about the DC police using
Speaker 1: cell phone surveillance technology to track down a suspect's location
Speaker 1: in ten without a warrant. The Fourth Amendment still exists,
Speaker 1: and the defendant says his constitutional rights were violated. Joining us.
Speaker 1: As former federal prosecutor Robert Min's head of the white
Speaker 1: collar and government investigations practice at McCarter and English, Bob
Speaker 1: tell us a little bit about the facts of the case,
Speaker 1: sure with this case dealt with a defendant who was
Speaker 1: sitting in his car in northeast Washington and had with
Speaker 1: him his cell phone, a prepaid cell phone. He also
Speaker 1: had with him four stolen cell phones that he had
Speaker 1: taken from women whom he had sexually assaulted. The police
Speaker 1: were trying to locate him. They used information from the
Speaker 1: telephone company to get his general location, but then in
Speaker 1: order to pinpoint exactly where where he was and they
Speaker 1: can arrest, they used something called a sting ray device,
Speaker 1: which is something that tricks a cell phone into believing
Speaker 1: that it is a cell tower. And so when your
Speaker 1: cell phone emits information to locate a cell tower to
Speaker 1: make a phone call, the string array device sends a
Speaker 1: message back and allows the police to locate within a
Speaker 1: matter of feat exactly where your phone is at that
Speaker 1: particular point in time. So the court has been is
Speaker 1: considering this case and whether it was constitutional for the
Speaker 1: police to use it. Had explain to us what legally
Speaker 1: how the court is looking at this question, sure, Michael, Well,
Speaker 1: the case really comes down to the question of whether
Speaker 1: or not the use of that stingray device without obtaining
Speaker 1: a search warrant to the Fourth Amendment violation. And it
Speaker 1: turns on the question of whether there's a reasonable expectation
Speaker 1: of privacy as somebody has uh in simply carrying their
Speaker 1: cell phone around, and whether the police, when they use
Speaker 1: the sting ray device which tricks your phone into revealing
Speaker 1: its location whether that is essentially a search and requires
Speaker 1: police to go and get a warrant before using a
Speaker 1: device like that. Bob Judge Phyllis Thompson said, it's difficult
Speaker 1: for me to see that he has a reasonable expectation
Speaker 1: of privacy because the defendant Jones was carrying stolen cell
Speaker 1: phones and there was an expectation that someone would try
Speaker 1: to find them or him. Do the stolen goods change
Speaker 1: the calculus, Well, they might. For that judge, there was
Speaker 1: a three judge panel heard the argument. This is only
Speaker 1: the second Court of Appeals anywhere in the country that
Speaker 1: has heard argument on this sting ray device, and the
Speaker 1: fact of this case, frankly, are not particularly good for
Speaker 1: the defense because not only was the defendant carrying his
Speaker 1: personal cell phone, but he also was carrying cell phones
Speaker 1: that he'd stolen from his victims. And so one of
Speaker 1: the things prosecutors have argued is that if the police
Speaker 1: were not able to locate him using his own personal
Speaker 1: cell phone, which raises his Fourth Amendment issue, they certainly
Speaker 1: would be able to locate him by tracking the victims
Speaker 1: phones because he had no privacy interests in the victims
Speaker 1: phones that he took after he assaulted these women, so
Speaker 1: that may complicate this case um as well as the
Speaker 1: fact that the defendant was on a public street as
Speaker 1: opposed to being in a home where the expectation of
Speaker 1: privacy is also diminished. You know, when when we have
Speaker 1: wire taps and things on traditional phone lines, there's complicated
Speaker 1: statutory structures at the state and federal level about that,
Speaker 1: and we seem to be struggling with the same kinds
Speaker 1: of issues in the in the you know, internet and
Speaker 1: cell phone era. Is this the kind of thing that
Speaker 1: really the courts should be dealing with or should this
Speaker 1: be something that is dealt with statutorially so that we
Speaker 1: can figure out what we really think about these complicated
Speaker 1: privacy questions. Well, the privacy rights advocates who have jumped
Speaker 1: in on this case are making that very argument to
Speaker 1: say that it's really something that Congress should address because
Speaker 1: it's a situation where technology and privacy rights really come
Speaker 1: together in a way that has produced inconsistent rulings around
Speaker 1: the country, and they're arguing that this is something that
Speaker 1: Congress should look at because it turns on the very
Speaker 1: complicated question of when you turn on your cell phone,
Speaker 1: do you by simply turning it on relinquish your privacy right?
Speaker 1: And is it fair for police without a warrant to
Speaker 1: turn your cell phone into what is essentially a tracking device.
Speaker 1: And that's something that privacy groups have said Congress ought
Speaker 1: to weigh in on so that there's a consistent position
Speaker 1: around the country and we don't have a patchwork of
Speaker 1: court cases around the country with inconsistent decisions. Bob, what
Speaker 1: about the cases that just involve cell phone towers. Are
Speaker 1: police allowed to just use the cell phone towers to track? Well,
Speaker 1: police have use cell phone towers and in those cases
Speaker 1: courts have said that there is no expectation of privacy
Speaker 1: there because you're making a phone call and by actually
Speaker 1: making the call, you're relinquishing your your privacy right. So
Speaker 1: you know, you know that your phone is connecting with
Speaker 1: a cell phone tower, and therefore it's possible for somebody
Speaker 1: to use towers to locate your particular location. Here, there
Speaker 1: was no call that was being made. It was this
Speaker 1: sting ray device that simply tricked the phone into giving
Speaker 1: away its location. And that's why it raises a slightly
Speaker 1: different legal question, Bob. There was a decision by an
Speaker 1: appellate court in Maryland. What did they say, Well, the
Speaker 1: Maryland Court came down on the side of the privacy
Speaker 1: groups and said that police ought to get a search
Speaker 1: warrant here. They said, there absolutely is a search that
Speaker 1: is conducted when somebody um uses a cell phone and
Speaker 1: the police use this sting ray device. And I think
Speaker 1: one of the things that troubled the Maryland court is
Speaker 1: that a police have been using these stingray devices for
Speaker 1: years and been very secretive about it, and in fact
Speaker 1: have entered into agreements with the manufacturers of this device
Speaker 1: not to disclose that they are using these devices, and
Speaker 1: in some cases have gone so far as to dismiss
Speaker 1: cases rather than to disclose to the defense and the
Speaker 1: courts that a stingray device was used. The Maryland courts
Speaker 1: found that troubling and probably was a factor in the
Speaker 1: court deciding that a Fourth Amendment search had taken place. Bob,
Speaker 1: that was the most surprising thing to me in this case,
Speaker 1: reading about how they've signed agreements with the FBI and
Speaker 1: device manufacturers to not disclose the existence to the public
Speaker 1: the courts or defense counsel. Is that legal, Well, it's
Speaker 1: legal if they ultimately decided to drop cases rather than
Speaker 1: to disclose the information. But I can see why a
Speaker 1: court would find it troubling because those agreements, which included
Speaker 1: the FBI and device manufacturers, or agreements that said that
Speaker 1: they wouldn't disclose to the public, to the courts or
Speaker 1: to defense counsel that these devices were being used. And
Speaker 1: that's one of the reasons privacy advocates are very alarmed
Speaker 1: by the use of these devices and the agreements that
Speaker 1: law enforcement have entered into into in connection with these devices.
Speaker 1: All right, well, we keep finding new ways that we're
Speaker 1: being tracked, and pretty soon, I don't think we're going
Speaker 1: to be surprised by these anymore. Thanks for joining us.
Speaker 1: That's from our federal prosecutor, Robert Menz. He's the head
Speaker 1: of the white collar and government Investigations practice at McCarter
Speaker 1: and English