22 September 2011, WSJ: 'Stingray' Phone Tracker Fuels Constitutional Clash
http://online.wsj.com/article/SB10001424053111903703604576584930665557472.html
SEPTEMBER 22, 2011
Key Documents in 'Stingray' Case
A new technology known as a 'stingray' is one of several being used by law enforcement to track people's locations.
See related article: 'Stingray' Phone Tracker Fuels Constitutional Clash [1]
These techniques are driving a debate about whether the Fourth Amendment, which prohibits unreasonable searches and seizures, but which was written before the digital age, is keeping pace with the times. Below, selected quotes from and links to key documents in the legal debate.
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In this email excerpt, taken from court records in U.S. District Court in Arizona, a federal agent describes using a stingray-type device to track a suspect. The agent discusses the need to get additional evidence of alleged wrongdoing, because the government doesn't want to divulge details about its tracking methods. In the court document, the device's name is redacted from the email:
"The tech guys were able to narrow the signal to 3 apartments. Today, we will be doing as much follow up research as we can. We need to develop independent probable cause of the search warrant ... FBI does not want to disclose the [redacted] (understandably so)."
--Email from Denise L Medrano, Special Agent Phoenix Field Office July 17, 2008 [2]
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The Arizona court case involves fraud charges against a man who was located by federal officials using stingray-type technology. The defendant maintains his innocence. This quote comes from a sealed court order granting federal officials permission to "expunge," or delete, the data they gathered, without showing it to the defendant.
The prosecution calls this document a tracking-device search warrant; the defense argues it's not a search warrant.
"WHEREAS the return and inventory requirements of Federal Rule of Criminal Procedure 41(f) do not apply to the information sought to be obtained by the instant application, Special Agents of FBI are therefore not required to serve a copy of this Order on any owner of the [aircard], nor to make an inventory of any resulting information to be served on any such owner, except upon further Order of the Court. However, at the conclusion of the tracking mission, the investigating agency shall expunge all of the data obtained by this Court Order;"
--Memorandum of Points and Authorities, Motion for Disclosure, July 29, 2011 [3]
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Here the prosecutor in the case, Frederick A. Battista, explains in a courtroom transcript why the government doesn't want to provide further information on the tracking technology it uses.
MR. BATTISTA [The Prosecutor]: It's sensitive law enforcement investigative equipment, Your Honor. And our concern--the basic concern, Your Honor, is that if the actual information regarding how this equipment is disclosed, it can be subject to being defeated or avoided or detected. So that's the primary concern.
--Status Conference before the Honorable David G. Campbell, Judge, Feb. 10, 2011 [4]
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In the next two exchanges between the judge and Mr. Battista, the prosecution is asked tough questions about what specific court orders federal authorities obtained to use the tracking gear.
THE COURT: All right. Thanks for your patience, folks. Mr. Battista, a few questions that I assume is all public and not sensitive information since you've been making disclosures. Were there warrants obtained in connection with the use of this device?
MR. BATTISTA: Your Honor, there was--it wasn't--it's an--it's a court order that satisfied Rule 41 language. There were two--there was two orders that were obtained in the Northern District of California. They've been disclosed to the defense.
THE COURT: Yeah, Mr. Rigmaiden made mention of those to me.
MR. BATTISTA: Yes.
THE COURT: And how was it that the government was able to get an order from a court authorizing the use of this technology without disclosing the technology to the court?
MR. BATTISTA: It's--it was a standard practice, Your Honor. The magistrates were familiar with the warrant. This wasn't a unique scenario. This particular style of order had been sought before, before the magistrates. I can file a copy with the court. The Court can see it. It lays out a certain amount of information, but it obviously doesn't disclose the exact nature of the equipment.
THE COURT: Well, how precise is the order in identifying the equipment that can be used?
MR. BATTISTA: I don't think it specifically names the equipment, Your Honor.
THE COURT: So what is the judge--I mean, the reason I'm asking this is a search warrant, as you know, is very specific. It says you can search during daylight hours at this location and these are pertinent buildings for the following items. How did this order authorize the use of this equipment without saying specifically what it was?
MR. BATTISTA: It puts certain limitations on the equipment in terms of what it can be used to do. So obviously I believe--and, again, it's been a while since I've read the order. I don't want to misstate to the Court exactly what it authorized to do because I have not read the particular order in quite some time.
So the best thing for me to do, Your Honor, would be to file a copy with the court or to reread it and give it to you in detail. Because I just don't want to misstate exactly what we were authorized to do.
THE COURT: All right. Well, and that's obviously public and that can be litigated whether those orders were appropriate.
--Status Conference before the Honorable David G. Campbell, Judge, Feb. 10, 2011 [5]
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THE COURT: How can we litigate in this case whether this technology that was used in this case violates the Fourth Amendment without knowing precisely what it can do?
MR. BATTISTA: Your Honor, I think the position of the government is that regardless of what the equipment is capable of, in this particular case even if it was capable of that, it wasn't used in this case, and I think the issue in the Supreme Court case was that imaging equipment was used to zero in on a very specific location and violate that particular person's expectation of privacy. Whereas in this case it just led us to a general vicinity.
THE COURT: Well, I understand that. But how does the defendant know that? I mean does the defendant just have to take the government's word that that's how it was used?
--Status Conference before the Honorable David G. Campbell, Judge, Feb. 10, 2011 [6]
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This excerpt from a prosecution memorandum lays out the government's assertion that its actions were appropriate and that the defendant had no expectation of privacy when the device was used to help locate him.
"Defendant had no reasonable expectation of privacy concerning the general proximity of the aircard for three reasons: (1) since the Supreme Court's holding in United States v. Knotts, courts have repeatedly held that people do not have a reasonable expectation of privacy concerning their general location; (2) people do not have a reasonable expectation of privacy concerning information voluntarily turned over to third-party businesses, which includes the cell site data at issue in the present case; and (3) defendant has no reasonable expectation of privacy in the location of an aircard obtained and maintained under a fictitious identity."
--Government's memorandum regarding law enforcement privilege, March 11, 2011, parts of which appear in the court record. [7]
[1] http://online.wsj.com/article/SB10001424053111904194604576583112723197574.html
[2] http://ia700707.us.archive.org/33/items/gov.uscourts.azd.396130/gov.uscourts.azd.396130.587.2.pdf
[3] http://ia700707.us.archive.org/33/items/gov.uscourts.azd.396130/gov.uscourts.azd.396130.590.1.pdf
[4] http://ia600707.us.archive.org/33/items/gov.uscourts.azd.396130/gov.uscourts.azd.396130.451.0.pdf
[5] http://ia600707.us.archive.org/33/items/gov.uscourts.azd.396130/gov.uscourts.azd.396130.451.0.pdf
[6] http://ia600707.us.archive.org/33/items/gov.uscourts.azd.396130/gov.uscourts.azd.396130.451.0.pdf
[7] http://ia700706.us.archive.org/15/items/gov.uscourts.azd.497308/gov.uscourts.azd.497308.465.0.pdf