Speaker 1: A big win for privacy and civil liberties at the
Speaker 1: DC Court of Appeals. The court ruled the police can't
Speaker 1: use a stingray cell phone tracker to find a suspect's
Speaker 1: location without a warrant. It's the fourth time a court
Speaker 1: has found the police use of a sting ray without
Speaker 1: a warrant violates the Fourth Amendment, joining us to discuss
Speaker 1: the cases. George Newhouse, a partner at Denton's and a
Speaker 1: former federal prosecutor. George first described what the sting ray
Speaker 1: does June. The stingray is a fascinating piece of technology
Speaker 1: developed apparently by CIA and military types for use in
Speaker 1: overseas theaters. But basically what it does is it imitates
Speaker 1: UH cell phone towers, which is to say, it will
Speaker 1: send out a signal, communicate with cell phones in the area,
Speaker 1: and make the cellphone stink. They've been called dumb devices
Speaker 1: by some judges that they're communicating with a cellphone tower
Speaker 1: and that enables the stingray device after it captures this
Speaker 1: information from your cell phone to help the police determine
Speaker 1: your precise location. So basically, it converts a cell phone
Speaker 1: into a tracking device and UH and in it with
Speaker 1: conventional directional attracking. The police sit in with this little device,
Speaker 1: and they can move around and determine with much greater
Speaker 1: accuracy than is available otherwise from the cell phone towers
Speaker 1: the precise location, concluding in some cases and in case
Speaker 1: the DC case, precise location of the suspect who was
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Speaker 1: six six Sector e t F. So, George, is this
Speaker 1: in this case that in d C? Was this a
Speaker 1: typical use of a sting ray? In this case? If
Speaker 1: I understand it correctly, they didn't know who the person
Speaker 1: was who was the alleged portrator, and they used the
Speaker 1: device not just to find the person, but also to
Speaker 1: figure out who in fact he was. Well, the device
Speaker 1: doesn't help them figure out who he was. You are right,
Speaker 1: the police did not know the identity of the In
Speaker 1: this case, a inaptlete named Prince Jones was had assaulted
Speaker 1: several ladies of the evening escorts, accosted them, made arrangements
Speaker 1: to meet them uh and then robbed them and uh
Speaker 1: and and committed other crimes. They did not know who
Speaker 1: he was. They knew who the victims were, and the
Speaker 1: victims provided their cell numbers, but they knew his cell
Speaker 1: phone number. It was a disposable phone, so there was
Speaker 1: no subscriber information that could be obtained as normally they
Speaker 1: would do um. So it wasn't until the police identified
Speaker 1: his location and arrested him in possession of both his
Speaker 1: cell phone and the and the victim cell when they
Speaker 1: were able to identify him. So George tell us about
Speaker 1: the courts link. So the court applied a conventional Fourth
Speaker 1: Amendment analysis, which is to say, is the use of
Speaker 1: this technology clearly something again that would never have been
Speaker 1: contemplated if by the founders when they enacted the Fourth Amendment?
Speaker 1: Uh and they said. The court said following, I might
Speaker 1: add a number of other courts, including a Court of
Speaker 1: Appeals in Maryland and a couple of federal courts of appeals,
Speaker 1: and determined the first question is was this a search?
Speaker 1: Is the use of this technology to capture information from
Speaker 1: a cell phone without these obviously the customers permission or consent?
Speaker 1: Is that a search? And if it was a search
Speaker 1: in this case, the DC police curiously did not have
Speaker 1: a warrant they could have, the court pointed out, obtained
Speaker 1: a warrant and had plenty of time. Uh. And if
Speaker 1: there was a search, because it was without a warrant,
Speaker 1: it violated the Fourth Amendment. The court went through the
Speaker 1: analysis and determined using the traditional invasion of privacy test,
Speaker 1: that it was a search uh, And that for that reason,
Speaker 1: it's suppressed all of the evidence and this notorious criminal
Speaker 1: goes free. George, I just have a follow up. Does
Speaker 1: it seem like a technicality? Because the appeals court rule
Speaker 1: that if the police had used the stingray on one
Speaker 1: of the victims phones which the defendant had, instead of
Speaker 1: the defendants, the search would have been legal because the
Speaker 1: victims consented to the search. It was a technicality, and
Speaker 1: that that argument was made below because recall, the perpetrator,
Speaker 1: Prince Jones, had not only his cell phone that he
Speaker 1: used to establish this liaison, but the victims cell phones.
Speaker 1: It was unclear of reading the Superior Court's decision and
Speaker 1: the Appellate Court decision, however, whether or not they were
Speaker 1: able to track the location. Had they been able to
Speaker 1: track the location by pinging or using the stingray and
Speaker 1: determine the location of the victims phones, then it would
Speaker 1: not have been a with them a violation. But the
Speaker 1: court was not able to determine that. So, yes, the technicality,
Speaker 1: but the important principle really, which is the principle of
Speaker 1: law here, is that this technology is highly invasive and
Speaker 1: probably does intrude upon a reasonable expectation of privacy. I
Speaker 1: think those of us who have cell phones who do
Speaker 1: not expect that the government is going to be able
Speaker 1: to use these cell phones to track our location at
Speaker 1: any given time, at least without a warrant, probable cause
Speaker 1: and a warrant, Well, George, isn't the flip side of
Speaker 1: that argument or the argument that prosecutors made something along
Speaker 1: the lines of you know, hey, when I have a
Speaker 1: cell phone and I'm using it, I do assume that
Speaker 1: I am giving away at least some location data because
Speaker 1: my my cell phone company is is acquiring that data.
Speaker 1: So does that affect the the the analysis of what
Speaker 1: is a reasonable expectation of privacy a great question. It's
Speaker 1: certainly actors into the analysis of as to whether or
Speaker 1: not the holder of the cell phone has a reasonable
Speaker 1: expectation of privacy. Curiously, in the oral argument, according to
Speaker 1: the opinion of the government, argued it, well, look, we
Speaker 1: all know and June, of course, is a great fan
Speaker 1: of using media clips to prove her various points. And
Speaker 1: they said, look, we all know from TV's shows that
Speaker 1: people who have these burner phones destroy them. We all
Speaker 1: know that the cell phones can be used to track
Speaker 1: our location, and therefore you know the defendant was unnoticed.
Speaker 1: I don't think that argument really carries enough water, because
Speaker 1: just because we may realize that technology exists does not
Speaker 1: necessarily dissipate a reasonable expectation of privacy. And again, remember
Speaker 1: the victim is using the phone and when the phone
Speaker 1: is being called. Yet you do know that the numbers
Speaker 1: and certain information is being relayed to a cell phone provider.
Speaker 1: But what you don't realize most of us, and I
Speaker 1: didn't before this case, is mysel phone is sitting on
Speaker 1: my desk quiet, I'm not using it. It is, however,
Speaker 1: silently communicating with cell phone towers. And now we know
Speaker 1: a pseudo fake cell phone towers that might be operated
Speaker 1: by the police, and information is being exchanged. I did
Speaker 1: look for some clips, George, I couldn't find any morning
Speaker 1: I'll find I'll find some yet I'm sure you will.
Speaker 1: Many state and local law enforcement agencies apparently signed agreements
Speaker 1: with the manufacture of the device to keep their use
Speaker 1: of it secret. And some you know, senators even who
Speaker 1: were questioned, didn't know whether their state had had this
Speaker 1: was used for using these Should there be this shroud
Speaker 1: of secrecy around police use of these sting rays? The
Speaker 1: answer is no, and and and frankly, the cat as
Speaker 1: it were, is out of the bag here. Uh. For
Speaker 1: the last few years and previously when this was a
Speaker 1: big secret, it was mainly a secret that was perpetrated
Speaker 1: by the FBI. By the way, the federal age and
Speaker 1: sees for the first ones to use this device, and
Speaker 1: they were sharing the technology with the local departments on
Speaker 1: the condition that the local departments do not disclose what
Speaker 1: they view as a key investigative tool. Um. And in fact,
Speaker 1: there was some criticism and some of the press and
Speaker 1: media about earlier courts the police departments not being forthcoming
Speaker 1: with defense lawyers. UM. I think that's now gone. It's
Speaker 1: it's widespread knowledge that this stingray device is out there
Speaker 1: and that the state, local, federal agencies are using it.
Speaker 1: Frankly with significant currency. It is interesting now that d
Speaker 1: o J policy, however, requires a federal use uh federal
Speaker 1: law enforcement to obtain a warrant before they employed the
Speaker 1: sting ray to detect location of cell phones. George, how
Speaker 1: practically difficult is it for police to get a warrant?
Speaker 1: It just based on the facts of the Jones case,
Speaker 1: it seems like they would have had a pretty good
Speaker 1: case to get a search warrant against against that phone.
Speaker 1: Great question, and the answer is, it's not difficult for
Speaker 1: the local authorities to obtain warrants, and one would and
Speaker 1: one does ask why they didn't go to the trouble
Speaker 1: of getting one in the Prince Jones case. Um, all
Speaker 1: the local authorities are set up. In fact, in many
Speaker 1: cases in most states, including California, a telephone warrant can
Speaker 1: be obtained. We have a lot of judges, and certain
Speaker 1: judges get a duty they have to stand by at
Speaker 1: all hours of the day and night and be available
Speaker 1: to police to get these what we call expeditious warrants out,
Speaker 1: so they are available. And frankly, there was probably an
Speaker 1: insufficient reason in this case why the DC Metro Police
Speaker 1: did not attempt to obtain the warrant they certainly had
Speaker 1: sufficient cause or problem cause. George, we know the Supreme
Speaker 1: Court is considering another cell phone issue. Tell us about
Speaker 1: that and whether any decision there would have an impact
Speaker 1: on warrants for sting rays A great question. Yes. The
Speaker 1: Supreme Court currently has before it in a case called
Speaker 1: the United States versus Carpenter, I very similar Fourth Amendment issue.
Speaker 1: In Carpenter. What's being obtained without a warrant is what's
Speaker 1: called location data, the location of cell phone towers UM
Speaker 1: so that basically, with a court order or arguably with
Speaker 1: a subpoena, a law enforcement can go to your carrier
Speaker 1: and get not real time, but data that will show
Speaker 1: where what your general location was. And again the cell
Speaker 1: phone data there. It doesn't pinpoint what building you're in,
Speaker 1: but it will indicate what neighborhood or what cell phone
Speaker 1: tower you are utilizing at any given time. There are
Speaker 1: many people, including our friends at the Civil Liberties Union
Speaker 1: American Civil Liberty Reunion, who believe that that also should
Speaker 1: require a fourth and a search warrant under the Fourth Amendment.
Speaker 1: The Supreme Court has scheduled I believe hearing for that case,
Speaker 1: very interesting case in October, but the difference there is
Speaker 1: it's not. First of all, it's not real time data,
Speaker 1: so it isn't data that going to indicate where you
Speaker 1: are at the instant, and it's not specific enough. We're
Speaker 1: not dealing with the situation as we were in Prince
Speaker 1: Jones where the police are actually communicating in a sense
Speaker 1: electronically invading your cell phone. So the argument in Prince
Speaker 1: Jones or a fourth amend of violation I think is
Speaker 1: much stronger than in the Carpenter case. That will be
Speaker 1: heard by the Supreme Court very shortly, and I expect
Speaker 1: that we'll do a broadcast not at June absolutely. Uh.
Speaker 1: Another question about the Supreme Court case. So, um, in
Speaker 1: that case, there's there's this federal law that probably most
Speaker 1: people haven't heard of, called the Stored Communications Act. Can
Speaker 1: can you tell us about that and to what extent
Speaker 1: that might give the government another argument for why why
Speaker 1: it might not need a warrant in that sort of case. Well,
Speaker 1: because Congress has, in fact, you're correct, it has acted
Speaker 1: it's past this statute. The section to seven oh three
Speaker 1: of the Storage Communications Act provides a mechanism for the
Speaker 1: government to obtain this information from courts, and again on
Speaker 1: a showing less than probable cause. UM. So that's better
Speaker 1: because at least you have congressionally authorized activity. But the
Speaker 1: Fourth Amendment regulates acts of Congress as well as unilateral
Speaker 1: acts by the police. So the fact that Congress has
Speaker 1: okay this particular provision, it does not necessarily mean that
Speaker 1: it comports with the Fourth Amendment. It's a strong argument
Speaker 1: in its favor, Harbor. So, George, they could appeal this
Speaker 1: to ask for an um. Actually, George, thank you so
Speaker 1: much for being on Bloomberg Law. As always on one
Speaker 1: of our favorite guest that's George Newhouse, a partner Denton's