WEBVTT - Appeals Court Rules `StingRay' Use Requires Warrant (Audio)

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<v Speaker 1>A big win for privacy and civil liberties at the

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<v Speaker 1>DC Court of Appeals. The court ruled the police can't

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<v Speaker 1>use a stingray cell phone tracker to find a suspect's

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<v Speaker 1>location without a warrant. It's the fourth time a court

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<v Speaker 1>has found the police use of a sting ray without

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<v Speaker 1>a warrant violates the Fourth Amendment, joining us to discuss

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<v Speaker 1>the cases. George Newhouse, a partner at Denton's and a

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<v Speaker 1>former federal prosecutor. George first described what the sting ray

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<v Speaker 1>does June. The stingray is a fascinating piece of technology

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<v Speaker 1>developed apparently by CIA and military types for use in

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<v Speaker 1>overseas theaters. But basically what it does is it imitates

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<v Speaker 1>UH cell phone towers, which is to say, it will

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<v Speaker 1>send out a signal, communicate with cell phones in the area,

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<v Speaker 1>and make the cellphone stink. They've been called dumb devices

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<v Speaker 1>by some judges that they're communicating with a cellphone tower

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<v Speaker 1>and that enables the stingray device after it captures this

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<v Speaker 1>information from your cell phone to help the police determine

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<v Speaker 1>your precise location. So basically, it converts a cell phone

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<v Speaker 1>into a tracking device and UH and in it with

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<v Speaker 1>conventional directional attracking. The police sit in with this little device,

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<v Speaker 1>and they can move around and determine with much greater

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<v Speaker 1>accuracy than is available otherwise from the cell phone towers

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<v Speaker 1>the precise location, concluding in some cases and in case

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<v Speaker 1>the DC case, precise location of the suspect who was

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<v Speaker 1>in an apartment or a house. Limberg laws brought to

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<v Speaker 1>you by Sector Spider e t S. Why by a

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<v Speaker 1>single stock when you can invest in the entire sector.

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<v Speaker 1>Visit sector spd rs dot com or call one eight

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<v Speaker 1>six six Sector e t F. So, George, is this

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<v Speaker 1>in this case that in d C? Was this a

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<v Speaker 1>typical use of a sting ray? In this case? If

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<v Speaker 1>I understand it correctly, they didn't know who the person

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<v Speaker 1>was who was the alleged portrator, and they used the

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<v Speaker 1>device not just to find the person, but also to

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<v Speaker 1>figure out who in fact he was. Well, the device

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<v Speaker 1>doesn't help them figure out who he was. You are right,

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<v Speaker 1>the police did not know the identity of the In

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<v Speaker 1>this case, a inaptlete named Prince Jones was had assaulted

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<v Speaker 1>several ladies of the evening escorts, accosted them, made arrangements

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<v Speaker 1>to meet them uh and then robbed them and uh

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<v Speaker 1>and and committed other crimes. They did not know who

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<v Speaker 1>he was. They knew who the victims were, and the

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<v Speaker 1>victims provided their cell numbers, but they knew his cell

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<v Speaker 1>phone number. It was a disposable phone, so there was

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<v Speaker 1>no subscriber information that could be obtained as normally they

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<v Speaker 1>would do um. So it wasn't until the police identified

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<v Speaker 1>his location and arrested him in possession of both his

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<v Speaker 1>cell phone and the and the victim cell when they

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<v Speaker 1>were able to identify him. So George tell us about

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<v Speaker 1>the courts link. So the court applied a conventional Fourth

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<v Speaker 1>Amendment analysis, which is to say, is the use of

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<v Speaker 1>this technology clearly something again that would never have been

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<v Speaker 1>contemplated if by the founders when they enacted the Fourth Amendment?

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<v Speaker 1>Uh and they said. The court said following, I might

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<v Speaker 1>add a number of other courts, including a Court of

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<v Speaker 1>Appeals in Maryland and a couple of federal courts of appeals,

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<v Speaker 1>and determined the first question is was this a search?

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<v Speaker 1>Is the use of this technology to capture information from

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<v Speaker 1>a cell phone without these obviously the customers permission or consent?

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<v Speaker 1>Is that a search? And if it was a search

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<v Speaker 1>in this case, the DC police curiously did not have

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<v Speaker 1>a warrant they could have, the court pointed out, obtained

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<v Speaker 1>a warrant and had plenty of time. Uh. And if

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<v Speaker 1>there was a search, because it was without a warrant,

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<v Speaker 1>it violated the Fourth Amendment. The court went through the

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<v Speaker 1>analysis and determined using the traditional invasion of privacy test,

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<v Speaker 1>that it was a search uh, And that for that reason,

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<v Speaker 1>it's suppressed all of the evidence and this notorious criminal

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<v Speaker 1>goes free. George, I just have a follow up. Does

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<v Speaker 1>it seem like a technicality? Because the appeals court rule

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<v Speaker 1>that if the police had used the stingray on one

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<v Speaker 1>of the victims phones which the defendant had, instead of

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<v Speaker 1>the defendants, the search would have been legal because the

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<v Speaker 1>victims consented to the search. It was a technicality, and

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<v Speaker 1>that that argument was made below because recall, the perpetrator,

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<v Speaker 1>Prince Jones, had not only his cell phone that he

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<v Speaker 1>used to establish this liaison, but the victims cell phones.

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<v Speaker 1>It was unclear of reading the Superior Court's decision and

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<v Speaker 1>the Appellate Court decision, however, whether or not they were

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<v Speaker 1>able to track the location. Had they been able to

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<v Speaker 1>track the location by pinging or using the stingray and

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<v Speaker 1>determine the location of the victims phones, then it would

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<v Speaker 1>not have been a with them a violation. But the

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<v Speaker 1>court was not able to determine that. So, yes, the technicality,

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<v Speaker 1>but the important principle really, which is the principle of

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<v Speaker 1>law here, is that this technology is highly invasive and

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<v Speaker 1>probably does intrude upon a reasonable expectation of privacy. I

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<v Speaker 1>think those of us who have cell phones who do

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<v Speaker 1>not expect that the government is going to be able

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<v Speaker 1>to use these cell phones to track our location at

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<v Speaker 1>any given time, at least without a warrant, probable cause

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<v Speaker 1>and a warrant, Well, George, isn't the flip side of

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<v Speaker 1>that argument or the argument that prosecutors made something along

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<v Speaker 1>the lines of you know, hey, when I have a

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<v Speaker 1>cell phone and I'm using it, I do assume that

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<v Speaker 1>I am giving away at least some location data because

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<v Speaker 1>my my cell phone company is is acquiring that data.

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<v Speaker 1>So does that affect the the the analysis of what

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<v Speaker 1>is a reasonable expectation of privacy a great question. It's

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<v Speaker 1>certainly actors into the analysis of as to whether or

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<v Speaker 1>not the holder of the cell phone has a reasonable

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<v Speaker 1>expectation of privacy. Curiously, in the oral argument, according to

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<v Speaker 1>the opinion of the government, argued it, well, look, we

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<v Speaker 1>all know and June, of course, is a great fan

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<v Speaker 1>of using media clips to prove her various points. And

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<v Speaker 1>they said, look, we all know from TV's shows that

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<v Speaker 1>people who have these burner phones destroy them. We all

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<v Speaker 1>know that the cell phones can be used to track

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<v Speaker 1>our location, and therefore you know the defendant was unnoticed.

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<v Speaker 1>I don't think that argument really carries enough water, because

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<v Speaker 1>just because we may realize that technology exists does not

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<v Speaker 1>necessarily dissipate a reasonable expectation of privacy. And again, remember

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<v Speaker 1>the victim is using the phone and when the phone

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<v Speaker 1>is being called. Yet you do know that the numbers

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<v Speaker 1>and certain information is being relayed to a cell phone provider.

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<v Speaker 1>But what you don't realize most of us, and I

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<v Speaker 1>didn't before this case, is mysel phone is sitting on

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<v Speaker 1>my desk quiet, I'm not using it. It is, however,

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<v Speaker 1>silently communicating with cell phone towers. And now we know

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<v Speaker 1>a pseudo fake cell phone towers that might be operated

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<v Speaker 1>by the police, and information is being exchanged. I did

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<v Speaker 1>look for some clips, George, I couldn't find any morning

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<v Speaker 1>I'll find I'll find some yet I'm sure you will.

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<v Speaker 1>Many state and local law enforcement agencies apparently signed agreements

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<v Speaker 1>with the manufacture of the device to keep their use

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<v Speaker 1>of it secret. And some you know, senators even who

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<v Speaker 1>were questioned, didn't know whether their state had had this

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<v Speaker 1>was used for using these Should there be this shroud

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<v Speaker 1>of secrecy around police use of these sting rays? The

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<v Speaker 1>answer is no, and and and frankly, the cat as

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<v Speaker 1>it were, is out of the bag here. Uh. For

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<v Speaker 1>the last few years and previously when this was a

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<v Speaker 1>big secret, it was mainly a secret that was perpetrated

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<v Speaker 1>by the FBI. By the way, the federal age and

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<v Speaker 1>sees for the first ones to use this device, and

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<v Speaker 1>they were sharing the technology with the local departments on

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<v Speaker 1>the condition that the local departments do not disclose what

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<v Speaker 1>they view as a key investigative tool. Um. And in fact,

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<v Speaker 1>there was some criticism and some of the press and

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<v Speaker 1>media about earlier courts the police departments not being forthcoming

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<v Speaker 1>with defense lawyers. UM. I think that's now gone. It's

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<v Speaker 1>it's widespread knowledge that this stingray device is out there

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<v Speaker 1>and that the state, local, federal agencies are using it.

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<v Speaker 1>Frankly with significant currency. It is interesting now that d

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<v Speaker 1>o J policy, however, requires a federal use uh federal

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<v Speaker 1>law enforcement to obtain a warrant before they employed the

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<v Speaker 1>sting ray to detect location of cell phones. George, how

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<v Speaker 1>practically difficult is it for police to get a warrant?

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<v Speaker 1>It just based on the facts of the Jones case,

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<v Speaker 1>it seems like they would have had a pretty good

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<v Speaker 1>case to get a search warrant against against that phone.

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<v Speaker 1>Great question, and the answer is, it's not difficult for

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<v Speaker 1>the local authorities to obtain warrants, and one would and

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<v Speaker 1>one does ask why they didn't go to the trouble

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<v Speaker 1>of getting one in the Prince Jones case. Um, all

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<v Speaker 1>the local authorities are set up. In fact, in many

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<v Speaker 1>cases in most states, including California, a telephone warrant can

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<v Speaker 1>be obtained. We have a lot of judges, and certain

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<v Speaker 1>judges get a duty they have to stand by at

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<v Speaker 1>all hours of the day and night and be available

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<v Speaker 1>to police to get these what we call expeditious warrants out,

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<v Speaker 1>so they are available. And frankly, there was probably an

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<v Speaker 1>insufficient reason in this case why the DC Metro Police

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<v Speaker 1>did not attempt to obtain the warrant they certainly had

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<v Speaker 1>sufficient cause or problem cause. George, we know the Supreme

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<v Speaker 1>Court is considering another cell phone issue. Tell us about

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<v Speaker 1>that and whether any decision there would have an impact

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<v Speaker 1>on warrants for sting rays A great question. Yes. The

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<v Speaker 1>Supreme Court currently has before it in a case called

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<v Speaker 1>the United States versus Carpenter, I very similar Fourth Amendment issue.

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<v Speaker 1>In Carpenter. What's being obtained without a warrant is what's

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<v Speaker 1>called location data, the location of cell phone towers UM

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<v Speaker 1>so that basically, with a court order or arguably with

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<v Speaker 1>a subpoena, a law enforcement can go to your carrier

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<v Speaker 1>and get not real time, but data that will show

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<v Speaker 1>where what your general location was. And again the cell

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<v Speaker 1>phone data there. It doesn't pinpoint what building you're in,

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<v Speaker 1>but it will indicate what neighborhood or what cell phone

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<v Speaker 1>tower you are utilizing at any given time. There are

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<v Speaker 1>many people, including our friends at the Civil Liberties Union

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<v Speaker 1>American Civil Liberty Reunion, who believe that that also should

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<v Speaker 1>require a fourth and a search warrant under the Fourth Amendment.

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<v Speaker 1>The Supreme Court has scheduled I believe hearing for that case,

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<v Speaker 1>very interesting case in October, but the difference there is

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<v Speaker 1>it's not. First of all, it's not real time data,

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<v Speaker 1>so it isn't data that going to indicate where you

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<v Speaker 1>are at the instant, and it's not specific enough. We're

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<v Speaker 1>not dealing with the situation as we were in Prince

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<v Speaker 1>Jones where the police are actually communicating in a sense

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<v Speaker 1>electronically invading your cell phone. So the argument in Prince

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<v Speaker 1>Jones or a fourth amend of violation I think is

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<v Speaker 1>much stronger than in the Carpenter case. That will be

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<v Speaker 1>heard by the Supreme Court very shortly, and I expect

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<v Speaker 1>that we'll do a broadcast not at June absolutely. Uh.

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<v Speaker 1>Another question about the Supreme Court case. So, um, in

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<v Speaker 1>that case, there's there's this federal law that probably most

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<v Speaker 1>people haven't heard of, called the Stored Communications Act. Can

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<v Speaker 1>can you tell us about that and to what extent

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<v Speaker 1>that might give the government another argument for why why

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<v Speaker 1>it might not need a warrant in that sort of case. Well,

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<v Speaker 1>because Congress has, in fact, you're correct, it has acted

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<v Speaker 1>it's past this statute. The section to seven oh three

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<v Speaker 1>of the Storage Communications Act provides a mechanism for the

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<v Speaker 1>government to obtain this information from courts, and again on

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<v Speaker 1>a showing less than probable cause. UM. So that's better

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<v Speaker 1>because at least you have congressionally authorized activity. But the

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<v Speaker 1>Fourth Amendment regulates acts of Congress as well as unilateral

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<v Speaker 1>acts by the police. So the fact that Congress has

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<v Speaker 1>okay this particular provision, it does not necessarily mean that

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<v Speaker 1>it comports with the Fourth Amendment. It's a strong argument

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<v Speaker 1>in its favor, Harbor. So, George, they could appeal this

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<v Speaker 1>to ask for an um. Actually, George, thank you so

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<v Speaker 1>much for being on Bloomberg Law. As always on one

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<v Speaker 1>of our favorite guest that's George Newhouse, a partner Denton's