Service by your cable or satellite provider. Hosost this is the the communicators and this week wleek at cellphone practices. We use it in several ways. We try to get the information from where people have been in the past in order to solve crimes that have occurred or are about to occur. We use it very much in that capacity. Host is it an effective tool in you view . Gues guest it can be. I can think of a gruesome homicide we have and the case wasnt revealed by cell tower information but that broke the case and we would have never found the suspect. Host are there restrictions on how the police can use the tracking . I think it is important to talk about how some of these devices work. You may have heard the word stingray. They operate by impersonating a legit cellphone and allow police to gather location, information, or serial numbers of not just the target zone but all phones in that area. In some cases, they can block or jam devices. The impact on the rights and privacy of not just the individual that the police seek to target but all other individuals and the range of the device. We are seeing Law Enforcement often lack key protections to make sure devices are used appropriately. We have seen cases of police using the devices without a warrant, a lack of policy where one information must be purged, generally the information about these devices that have been made public on whether they should be used or how they should be used. All of this is concerning. Host Mike Doucette, should police have to get a warrant . Guest are we talking stingrays or the cellphone towers . There are a number of technologies. I own a smartphone that doesnt make me start in this technology. I am a practitioner, a prosecutor, dealing with these cases all of the time. We have stingrays, we have historic cellphone information, we have realtime location through third parties. There is legal consequences and legal considerations for all three of those. And so when you talk about stingrays, should there be in what requirement . I think, yes, personally. In virginia, our legislature required that a couple years ago. We as prosecutors got together with the aclu and other groups and passed legislation to make it clear to Law Enforcement in a stingray sort of situation you have to have a search warrant. It is not clear as far as constitutional law although i think we are probably getting close to that. But i agree that a lot of this information has not gotten out. Again, when we talk about a stingray and keep in mind a stingray is a brand name. It is sort of like qtip or scotch tape. It is generic term like those. But these are devices that are compelling phones to give their locations to them. The company that produces the king ray has a nondisclosure policy with every Law Enforcement agency. There is a problem with getting the information out. A lot of Law Enforcement agencies are not disclosing the information dealing with stingrays and there probably hasnt been the discussion at least in the courts that ought to be. Host lets bring in dustin from reuters. You mentioned the nondisclosure agreement. That leads to stingrays being used in the case but it isnt known to the judge or defense attorney. Why are Law Enforcement so accepting to have nondisclosure agreements and is that a fair process where they may not know the evidence was cleollected . Guest we in lynchburg tonight have striingrays. My understanding is before the harris corporations sells the stingray to anyone they require a nondisclosure agreement. The Law Enforcement agencies to be perfectly honest, Law Enforcement doesnt want to do this because it leads to people asking questions. We need to be more transparent and let the public have more trust. In virginia, we require a search warrant before we can use a stingray. Whatever agencies that are in virginia that have stingrays, they have to have a search warrant and there is going to be some sort of disclosure and notice as far as thats right concern. But there are jurisdictions. I have read a lot about baltimore where baltimore has a number of stingrays and used them numerous times, in the thousands, and very little disclosure to the point where there is big cased dropped because of the nondisclosed information. I think to have this discussion whether it is today, in the courts, wherever it might be, i think it is only going to be leading to positive things. Do you want to respond to that . Should the fbi and local police be able to use the Surveillance Technology . I think it is agreement this is a problem but it is important to understand the secrecy has been condoned by the federal government. We have seen local prosecutors in some jurisdictions withholding this from judges. In tacoma, washington we found judges after the fact saying i approved applications and Law Enforcement didnt tell me it was a stingray device. In baltimore, there was a case where a judge was asking a question of a local attorney and they said well i sign ad nondisclosure agreement, and i think the judge rightfully responded you didnt sign one with me and i deserve oo have information. Beyond judges we have seeing defendants and their attorneys not being told how information that is being used against them was gathered and that is something the constitution generally recognizes. If you are taken to court and the government seeks to charge you with a crime you have a right to know how the evidence was gathered against you but often we are not told that. In maryland, they estimate there could be several hundred cases where individuals were not informed of this. Aclu filled foyer reports and sent emails to local Law Enforcement and police directing them saying if you use information about a stingray in court refer to it as information from a confidential source not information from a stingray. This isnt just Law Enforcement officials or attorneys not being aware of the devices and not being aware of the procedures but rather it has been, you know, secrecy that has been condoned by the department of justice in one way or the department of Justice Needs to change its policies to make sure information about the devices is disclosed appropriately to the public, judges and criminal defendants. I dont practice in federal court but it is my understanding that the doj has implemented a policy that requires for federal use of a stingray they do in fact have a search warrant. There was a case that was in the Fourth Circuit that made a footnote that dodge now has this particular policy and has for the last year. Prior to that they did fought have that policy but now they require a search warrant. The court orders that neema is talking about are 2703d court orders and pursuant to the communication act. They have a standard that is not up to probably cause. It is not the same as a search warrant but it is not a totally standard list of procedure. I am sure there are instances of no order but when they do get the orders there is a court review of this particular information. How thorough those orderers are . I think a lot depends on how much information is put in the ord orders and what questions judges are asking. I think it is important to have a working knowledge of what thes things are, what they are signing and if they dont know what they are signing dont sign until you get more information. Can i just respond to one point . You are right. The department of justice issued a policy and it was a step forward in a sense saying the default for federal agents should be getting a warrant before using a stingray. But there are two glaring loopholes unfortunately. First is it doesnt apply to states and localities even ones receiving funding to buy stingrays. If you receive a million from the government to buy a stingray you are not found by that policy or requirement. The second is that policy and a similar one issued by department of Homeland Security have loopholes. For example, the policy says you dont need a warned in socalled exceptional circumstances and doesnt design exceptional. We know it is not an energy because there is an exception for that but emergency but we dont know the rest. Wile it is a step forward that we are now finally, over a decade after devices started being use, we have policy suggesting a warrant is required but there is a lot more that needs to be done to tighten up that warrant requirement. It doesnt affect other agencies as well. Some are coming out as we learn more and even the irs, for example, used Stingray Technology and they are not bound by the warrant requirement either. I think a lot of people are surprised by the changes. Why would the irs need to use cellphone tracking like a stingray. That is a great question. We have not seen guidance from the department of justice and Homeland Security. What i think it speaks to is the need for legislation and better policy on this. You cannot leave it to the reality is that took embarrassing news stories, several congressional news stories, and over a decade for the department of justice to even issue that limited policy. That is something not the way it should work when using Surveillance Technology. It should not be lets put the technology on the streets and worry about privacy concerns and constitutional concerns after the fact. We need to switch and flip that mentality where we have a robust debate within congress and about the technologies before deploying them. You think about when should they be used, what privacy issues exist, who should be notified. They should be answered on the front end. Host Mike Doucette being from the commonwealth, does it make you uncomfortable a corporation is signing a nondisclosure agreement with a Law Enforcement agency . Guest not having seen the langua language, yeah. We have certain constitutional requirements we have to live by such as disclosing evidence, disclosing information that is pursuant to discovery. We cannot be bound by some contract with a private entity that says so this trumps your constitutionalal requirement. If it i said i could not disclose it regardless tan take your equipment. And keeping in mind we can do this another way. You dont have to have a sting way. What it does is allows Law Enforcement to do it directly. We can always ask for a court order for realtime location data that the provider provides Law Enforcement and makes it more cumbersome. In virginia, we require a search warrant for that and i know some jurisdictions required a 230 d. We can get it other ways. Host have you used that tool regularly as far as search warrant . Guest we have not. We tend to use more historic cellphone tower data. That is the way it sis in most offices. I know in rhode island it is done by the prosecution office. I have not had the occasion. Maybe there is an occasion where we would ask for a search warrant for a third party cellphone provider to ask for that realtime location data. But we do have that route available should we chose it. Host neema singh giulani , do you have a problem with Law Enforcement having access to that tool . Guest when it comes to reque requesting Location Information our policy is the constitution requires a warrant. Most courts when it comes to realtime collection have been in line with that and department of justice and most jurisdictions say a warrant is required for realtime gps locations. In terms of information history information, many jurisdictions dont require a warrant and use a lesser standard. We feel that is not consistent with the constitution. But this is an issue that the courts still need to resolve or where Congress Needs to act. I think the average person, if you tell them hey, i think i can track where you have been, whether to the doctor, aa meeting, church, you will find that to be extremely sensitive information. As the technology progressing, we are finding that Historical Information is increasing in accuracy. It isnt just the general area but it could be the floor of the building you are on. As technology develops i think we need the courts and congress to step in and say look, this is very sensitive information, you should get a warrant. Law enforcement should get a warrant. That is what the constitution requires and what most people want to have happen. Guest i think of the constitutional requirements as a little more complicated. You start looking at the United States versus jones dealing with gps devices. The majority deals with the trust notion. You look at the conquering information and dealing with what is called the mosaic theory and i have to give credit to professor cur because he came up with this. But normally we say is event a a violation of the 4th aamend; an if no we go on to b and c. If the answer is no then it is not a violation. Under the mosaic that was later adopted by a three judge panel and recently reversed you may have a situation of no 4th amendment violation until a passage of time. So this piece of the tile may not be a 4th amendment violation but when you put enough pieces of tile together you get a mosaic and violation. Then you have the third part of the stool, the Third Party Doctrine, and you to see if that is implied and that is the case that was recently discovered by the 4th circuit on United States versus graham and they said no, the information from cell phones is being provided to a third party with no reasonable expectation of privacy but it goes to a third party. That was based on two cases from the 1970s that was decided by the Supreme Court. The question is at this particular time, are these cases dealing with technology that didnt exist in the 1970s is that how we will solve these cases . And i agree this is tough case l law. This is a realm for the legislatu legislatures because they can use more information. This is a realm for the legislature. We see things like, again in virginia, we are trying to balance this sort of bite line test versus following the case law. We basically gave guidance to our Law Enforcement by saying General Assembly of virginia said you want to do realtime location data and stingrays you need a cellphone. Historic cellphone tower is different. To my knowledge, it is not as accurate as neema is making it out to be. It is basically you have 120 degree angle on the tower and the range knows as far as two miles. You can see within four square miles where someones phone might be. Now, Technology Grows and grows and it might be getting more accura accurate. It is said customers dont realize this is something they are handing over to a service provider. This is not data they are knowing knowingly. The Fourth Circuit was the fi h th circuit to rule on the historic cellphone tower information and all five applied the thirty party doctrine. The decent may have talked about it but it was outvoted 123. Unless the Supreme Court says differently or and they basically said, congress, here is an opportunity to delve into this and if you do you are more appropriate than we as courts are. But the 4th circumstance circuit said it isnt up to get rid of the Third Party Doctrine. We are going into brave new worlds between eliminating the Third Party Doctrine, whether we eliminate the model and go to a mosaic and that is almost unworkable. I cannot give guidance to a cop you are okay here, here and here but on the 7th day, no, you crossed the line now. We know understand United States versus jones that 28 days is too long. We dont know before that. I think that is where it is appropriate for the legislature to make that call. Would you like to respond and does it need review in the third party . Guest the idea of the Third Party Doctrine in todays age would bother people. All of us use cellphone and email providers and lot of private information is passing through third parties. And there are courts acknowledging there are limitations. In the sixth circuit they said just because you use a provider to send email doesnt mean there shouldnt be a warrant requirement and you dont have an expectation of privacy. I think many of the cases that are relied on to support this idea that just because you gave your information to a third party you have no rights or reason or expectation of privacy. Those cases are dated and i dont think reflect the way we use Technology Today and the expectation of privacy people have. The other point that is important is about the crash of the information. We looked at historical cases and many are old and relied on the reason this isnt accurate. That is not necessarily true in todays day and age. It depends on how many cellphone towers are in an area. Lets say you live in an urban area with lots of towers the precision could be accurate. People want better Cellphone Service and faster so they have tiny cells to boost internet or phone service in a particular area. Because of those you might be able to pinpoint location to the floor of a building because it may only serve one building or floor. So historical cellphone information is becoming increasingly more accurate and may pinpoint whether you have at home, in a church or an aa meeting. Because of that sensitivity i think there is a need to put in place a warrant requirement and whether it is congress and the legislatures do that or if this is an issue the Supreme Court ultimately decide i think it is important to put in policies that protect peoples information. Host where would you like to see it decided . Guest i think the issue is ripe for congress and legislatures. Unfortunately, what we often see is the courts lag behind technology. You know, if it takes 25 years for the courts to make a decision on something, often the technology has eclipsed the issue they examined. We heard that in the Supreme Courts opinion in jones where they urged congress to have a role, to be forward leaning and put in place legislation. It is important to note it is not just phones that have your information location. It is all kinds of devices. You know, whether it is fitness devices, or other apps that often track location, you know to provide people services. We are seeing many Different Companies who now are going to have access to Location Information very sensitive information. And for that reason, i think it is Important Congress be on the front end of seeing where technology is leading and putting in place the requirements to make sure people feel secure and private. The last thing you want is people saying i will not use this new device or app because i am worried my information isnt secure. You mentioned baltimore earlier. There has been evidence to suggest in places like baltimore and chicago after the ferguson grand jury decision and baltimore during the freddie gray protest that the fbi was flying planes over that and some evidence suggests stingrays were being used to track the protesters. Is that an appropriate use of the technology in your view . I dont condone that. What purposes do you think they would be using it . I think stingrays, and this is my own person opinion, stingrays have a use, it is basically in those circumstances where you have to act now or never. Or pursuant to a warrant as it may be appropriate. And i think that and again we will probably disagree but there is an active mode and passive mode. The active mode with stingrays is they ping the phone and send out a signal. I say phone because of the simplicity. They ping the phone and the phone pings back saying here i am. The results are a passive mode where the stingray collects. Your phone will send out a signal to the closest tower. Here i am. That way verizon, nexttell, tmobile knows when a call comes in to send to my pocket. Stingrays can act in a passive particular mode. I think because the Third Party Doctrine is still alive at this particular point if they are using them in a passive mode is a lawful use of that. I think when you are in an interactive mode and not looking for a particular phone, a group of phones, you want to do basically spy work. I cannot condone that. Based on colleagues with the other states and federal level . That is why warrants are not being used because there is concern the judge would not approve the use. In virginia, warrants are pretty new certainly. So i think there is while there is concern about that, there is a lot of concerns about how to use the warns especially in the stingray environment. Search warrants are basically designed for static environments where we go to a particular location in a particular town looking for a particular item. Drugs for instance. But using a search warrant for a stingray you are looking for who knows what and who knows where sort of thing so the particular aspect is problematic. Guest stingrays are essentially mass surveillance devices. You are talking about gathering information of all phones in a particular range. The u. S. Marshall service attaches these to planes to maximize the area. Given the effect it has on hundreds, if not thousands of people, it is important to have clear standards and policies. The reality right now is we dont and we dont because the federal government hasnt required states and localities to follow certain guidelines and we dont because there was an effort to hide the devices. Now there is more information and it is public, congress and the department of justice, have a responsibility to put in place bet standards. Neema singh giulani
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