Stingrays and Privacy

The Florida Supreme Court recently issued an opinion holding that the Fourth Amendment protections apply to real time cell site location information. The court distinguishes real-time cell site location records from historical data, emphasizing that historical cell site location records are not at issue in this case. This real time location surveillance is done with devices used by law enforcement to track cell phones. These devices, known as “IMSI catchers,” are sold under the names StingRay, TriggerFish, AmberJack and other fish names.

In Tracey v. State, 39 Fla. L Weekly S 617 (2014), the court rejects the mosaic theory of the Fourth Amendment that was applied in United States v. Jones, 132 S. Ct. 945 (2012). Using this approach, courts evaluate a sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. The Florida Supreme Court notes that the theory’s “case-by-case, after-the-fact, ad hoc determinations” are not workable and present the danger of arbitrary and inequitable enforcement. Tracey at 38. The court also rejects the idea of “setting forth a chart designating how many hours or days of monitoring may be conducted without crossing the threshold of the Fourth Amendment.” Id. at 39-40.

The court bases its opinion on the “normative inquiry” put forth in Smith v. Maryland, 442 U.S. 735 (1979). In Smith, the Supreme Court said that a normative inquiry would be proper “where an individual’s subjective expectations had been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Smith at 740-741. Applying the normative inquiry, the Tracey court looks to various factors and considerations. One consideration is how easy it is for the government to monitor and track cell phones. The court also notes that “[s]imply because the cell phone user knows or should know that his cell phone gives off signals that enable the service provider to detect its location for call routing purposes . . . does not mean that the user is consenting to use of that location information by third parties for any other unrelated purposes.” Tracey at 45. While cell phone users can turn off their cell phones to prevent location signals from being used, the court finds that this would place an “unreasonable burden on the user to forego necessary use of his cell phone, a device now considered essential by much of the populace.” Id. at 46. Finally, the court finds that cell phones are “effects” under the Fourth Amendment, having become “virtual extensions of many of the people using them for all manner of necessary and personal matters.” Id. at 49.

The Florida Supreme Court distinguishes this case from the U.S. Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983) where the Court found that the use of an electronic beeper to track a car’s movement was not a violation of the Fourth Amendment. The relationship between Knotts and the beeper is different from that of an owner and his cell phone. The Florida court also found that in Tracey, though the defendant’s movement on public roads was tracked, law enforcement would not have been able to locate him on those roads but for the real time cell location data.

The court concludes by stating that “a subjective expectation of privacy of location as signaled by one’s cell phone—even on public roads—is an expectation of privacy that society is now prepared to recognize as objectively reasonable under the Katz ‘reasonable expectation of privacy’ test.” Tracey at 53.

For more information on Stingrays, check out this previous blog post about what defense attorneys need to know and this School of Government post about the legal status of these devices. A recent Charlotte Observer article discusses the use of the technology locally. The article reports that Charlotte-Mecklenburg police department has owned this surveillance equipment for eight years and currently uses it on a weekly basis. While police seek court orders before using the equipment, one Superior Court judge said that he has approved hundreds of requests, has never turned down a request, and is unaware of any other Superior Court judge ever rejecting a request. Orders allowing this type of surveillance are sealed and not provided to the defense through discovery, so it is unclear when and how this technology is being used.

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