The DC Circuit Court of Appeals ruled this week that the police do need to secure a warrant before using a Stingray device to spoof cell phone towers in order to surveil a suspect. This is a very important ruling that I hope the Supreme Court doesn’t overturn on appeal.
A device that tricks cellphones into sending it their location information and has been used quietly by police and federal agents for years, requires a search warrant before it is turned on, an appeals court in Washington ruled Thursday. It is the fourth such ruling by either a state appeals court or federal district court, and may end up deciding the issue unless the government takes the case to the U.S. Supreme Court or persuades the city’s highest court to reverse the ruling.
The case against Prince Jones in 2013 involved D.C. police use of a “StingRay” cell-site simulator, which enables law enforcement to pinpoint the location of a cellphone more precisely than a phone company can when triangulating a signal between cell towers or using a phone’s GPS function. Civil liberties advocates say the StingRay, by providing someone’s location to police without court approval, is a violation of an individual’s Fourth Amendment right not to be unreasonably searched. The D.C. Court of Appeals agreed in a 2 to 1 ruling, echoing similar rulings in the Maryland Court of Special Appeals and federal district courts in New York City and San Francisco.
“This opinion,” said Nathan F. Wessler of the American Civil Liberties Union, who helped argue the case with the D.C. Public Defender Service, “joins the growing chorus of courts holding that the Fourth Amendment protects against warrantless use of invasive, covert technology to track people’s phones. … We applaud today’s opinion for erecting sensible and strong protections against the government violating people’s privacy in the digital age.”
Believe it or not, this is a situation where we might miss Justice Scalia on the court. Despite his many other flaws, Scalia had a pretty strong record on 4th Amendment search and seizure matters. Whether Gorsuch will follow in his footsteps in that regard is a total mystery, but I don’t know that I’d bet on it. Thomas, Alito and Roberts have bad track records when it comes to police power and the 4th Amendment, as does Kennedy. Scalia might well have voted with the liberals on the court in an appeal on this case. We’ll have to wait and see whether there are still five votes for meaningful limits on the government’s right to conduct surveillance without a warrant.