Ed. Note: Following the District of Columbia Court of Appeals decision in Jones v. United States, holding that the use of a “Stingray” cellsite simulator required a warrant under the Fourth Amendment, Chris Seaton and Andrew King were challenged to debate whether the Third-Party Doctrine or the Supreme Court’s Riley v. California decision should control. This is Chris’ argument.
On June 25, 2014, the United States Supreme Court issued a ruling that made every red-blooded, patriotic American heart swell with pride. Chief Justice Roberts’ words screamed the very essence of “rock flag eagle”:
Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.
This emphatic affirmation of our Fourth Amendment rights caused a certain Admiral to channel his inner Jesse Pinkman* on reading Riley v. California. Unfortunately the ink wasn’t even dry on the opinion before cops and legislators started to try and figure out ways around Riley.
The latest garbage assertion is the use of a Stingray doesn’t require a warrant. Even the blue-haired gender studies majors at UC Berkeley can reach the same conclusion the DC Court of Appeals reached: “Nope.” This would be the first and only time reasonable, sane individuals should ever agree with gender studies majors. Using any device to access cell phone data violates an individual’s Fourth Amendment rights, regardless of the methodology. Get a warrant.
In case you’re unfamiliar with a Stingray, it’s a device that simulates a cell phone tower. Once cops turn the device on, it can determine the location of a mobile phone, as well as intercept calls and text messages.** If other phones are in the vicinity, the Stingray will collect their data as well. The invasive nature of the device should make it obvious that cops should get a warrant before using one.
My colleague, Andrew King, seems to think use of a Stingray is never really a search due to something lawyerly-types call the “Third-Party Doctrine.” Boiled down to plain English, if you give information to a third party, and that party gives that information to law enforcement, you have no reasonable expectation of privacy and there’s no Fourth Amendment violation.
King’s contention is the Third-Party Doctrine applies because cell phones freely broadcast for any tower to receive. This affirms my long held belief that Andrew is a really nice guy who’s wrong on just about everything. Let’s unpack the specifics of why the Third-Party Doctrine doesn’t apply.
First, two separate experts testified in the Prince Jones case that phones targeted by a Stingray don’t freely give their information to any tower. Sergeant Todd Perkins told the court once the Stingray “grabs” a cell phone, it prevents the device from communicating with other towers in the vicinity. It can’t freely broadcast information to other towers because the Stingray takes control of what signal the target phone can broadcast.
Sergeant Perkins’ claims were solidified by Ben Levitan, an “expert on cellular telephone networks and systems” called by the defense. According to Levitan, your mobile is a “dumb device” that generally connects to the strongest signal tower it can find. Once the Stingray is deployed, the target phone will see it as a stronger signal than other towers and latch on to the Stingray’s signal. There’s no “free broadcast” once cops turn the Stingray on. Your mobile is coerced into giving the Stingray its information.
Second, the DC Court of Appeals correctly noted cell phones are pervasive in both public and private areas. People are practically glued to them, regardless of location.*** If a device like a Stingray has the ability to locate a person in their residence, then its use absent a warrant potentially crosses into a Fourth Amendment violation.
Finally, the Stingray’s ability to exploit the communication feature of a cell phone from a remote location in order to locate a person violates a person’s reasonable expectation of privacy. According to the court, the only ways to shield yourself from a Stingray are either turning off your phone or disabling the communication feature. That exploit, accessible from a remote location, delves so far into a person’s reasonable expectation of privacy that a warrant is necessary.
Sitting next to me as I write this is a device capable of delivering an incredible wealth of knowledge with a few taps on a screen. That same device has an exploit allowing law enforcement to physically access my location, in my home, with nothing more than my mobile number and the flick of a switch on another remotely located device. You don’t need to be a caveman to reach the conclusion that using a Stingray requires police obtain a warrant for its use.
The Stingray is a powerful tool for law enforcement when used in the proper fashion. That same tool carries with it great potential for abuse and overreach. Perhaps the DC Court of appeals finally helped us achieve true intersectionality with its holding in Prince Jones v. United States. We’ve reached a point where tradesmen can lock hands with gender studies majors in unity and tell law enforcement the same thing. Want to use a Stingray? Listen to Chief Justice Roberts: “Get a warrant.”
Rebuttal: Oh, how the prosecutor would lead you down the primrose path of “it’s just a signal, move on, nothing to see here.” It’s the sort of weaselly argument that wins him cases. Unfortunately, Mr. King doesn’t get the chance to fool you here.
First, the majority of the judges in the DC Court of Appeals didn’t “misunderstand” the way cell phone technology works. In their ruling they relied on testimony from two separate experts who came to the same conclusion: Stingrays exploit a flaw in cell phones to hijack the targeted device and obtain its information. Applying the law, especially that articulated in Riley, leads to the logical conclusion law enforcement needs a warrant before using a Stingray.
Quoting the late legal scholar, Billy Mays, “Wait, there’s more.” Mr. King attempts to conflate the Starbucks App’s push notification of pumpkin spice latte season to the very specific SMS data collected by the Stingray. While cell phones may send out a signal every so often, law enforcement isn’t interested in the signal broadcasting your morning coffee order.
The signal they want is one you rarely notice, but one that gives them access to your location, phone calls, and text messages. That specific signal contains so much information that giving it to law enforcement absent a warrant is certainly a Fourth Amendment violation. It’s a clever deception Mr. King attempts, but a deception nonetheless.
Finally, Andrew’s argument equating a Stingray to a honeypot is specious at best, but really another case study of why he’s a Really Nice Guy Who’s Wrong About Everything. The security flaw both experts cited in Prince Jones is that crucial one finding the cell phone tower allowing you to call your drunk uncle Gary with the latest excuse why you’re missing Thanksgiving dinner. Saying “Don’t like it? Don’t use a cell phone” in this era is essentially waving off the one tool the majority of Americans use to connect with others.
Don’t like that inconvenient truth, Mr. King? Then get a warrant.
PS: Since he brings my beloved Vols into the equation, I’ll mention this: Thirteen conference championships. Six national titles. Ohio State won their last one by beating a team famous for trick plays and a duck mascot.
*Walter White’s sidekick in the crime drama Breaking Bad, for those who’ve yet to see the show, yo.
**Page 14 of the Prince Jones opinion says use of cell phone tracking devices like the Stingray can reveal a person’s “familial, political, professional, religious, and sexual associations.” Why the DC Court of Appeals took a person’s sexual associations into consideration is beyond my understanding. Especially if it involves gender studies majors.
***Hence the name “cell phones.” Hey, if ever a dumb dad joke applied, it’s here.