The NSA documents leaked by Edward Snowden last year revealed hundred of programs aimed at collecting metadata -information generated as individuals use technology- from suspected terrorists or other law enforcement targets. Among the programs disclosed was the use of “dirtboxes” mounted to planes and used by the US Marshalls to collect large amounts of data in an effort to locate fugitives. The “dirtboxes” mimic cell phone towers and trick cell phones in the area into connecting to them. Once connected, the devices can obtain each phones registration information and location. The devices are similar to StingRays that are attached to vehicles to gather the same information. However, privacy advocates stress that attaching the devices to planes allows them to sweep broader areas leading to more information of third parties also being collected. One such NSA program revealed last year reportedly collected data on phone calls of more than a million Americans within the US using the plane mounted devices.
The Justice Departments has neither confirmed nor denied the existence of such programs citing security concerns. “Discussion of sensitive law enforcement equipment and techniques would allow criminal defendants, criminal enterprises or foreign powers to determine our capabilities and limitations in this area,” said one department official. Privacy groups and some judges worry that these devices are so invasive that they should require a warrant to be obtained before use.
But the U.S. Marshalls are not alone in the use of Cell Site Simulators, often referred to as StingRays, to harvest large amounts of data. In Tacoma, Washington, law enforcement and the courts are struggling with the proper way to use Cell Site Simulators. Pierce County Judges have been unwittingly approving the use of such simulators for years and are now demanding a change in the way police obtain warrants to use them. Tacoma police had been seeking permission to use “pen registers and trap and trace” devices in the sworn affidavits presented to the court. Instead, police were using the cell site simulators, essentially misleading the judges in some 170 cases. The county’s 22 Superior Court Judges now require specific language in the affidavits saying that they are using the device and swearing that they will not store any data from third parties not connected to the investigation.
The problem with the lack of transparency in the affidavits submitted by the police is that Cell Site Simulators can be much more invasive than pen registers even when not used with planes. The devices trick all cell phones in the area into connecting to them which means information from innocent third parties will inherently be gathered any time the device is used. The data is then stored on police servers presumably until the case is concluded. The lack of transparency also prevents judges from overseeing the use of the devices and thwarting abuses. It may also frustrate a defendant’s ability to bring a Fourth Amendment claim to have the evidence gathered excluded. For these reasons, courts are becoming more “wary of unfettered tracking” by law enforcement.
Criminal defense attorneys must be aware of the ever evolving way information is gathered and utilized by various branches of law enforcement. Knowing how information was gathered in a particular case allows criminal defense attorneys to ensure the constitutional rights of their clients are not violated. The way law enforcement gathers information can raise important Fourth Amendment issues that can greatly impact a client’s case.