MANHATTAN (CN) — In an unprecedented rebuke of the “stingray” surveillance system, a federal judge threw out drug evidence, saying the government “may not turn a citizen’s cellphone into a tracking device.”
The American Civil Liberties Union hailed the momentous Fourth Amendment victory.
“After decades of secret and warrantless use of StingRay technology by federal law enforcement to track phones, a federal court has finally held the authorities to account,” ACLU attorney Nathan Freed Wessler said in a statement.
A StingRay is a cell-site simulator that locates cellphones by mimicking the service provider’s cell tower, and forcing nearby phones to “ping” the simulator.
Authorities are believed to have been using the technology since at least 1995, but the broader public learned did not learn of StingRays until 2013.
The revelation came from the prosecution of hacker Daniel David Rigmaiden, and a flurry of Freedom of Information Act litigation grew out of its wake.
Since then, the once-obscure technology has been the subject of increasing controversy from the public and, recently, legislators from the House Oversight and Government Reform Committee.
U.S. District Judge William Pauley gave StingRays their first judicial rebuke Tuesday in a ruling that suppresses evidence against Raymond Lambis that the Drug Enforcement Administration obtained from Lambis’ apartment.
Using a warrant for pen register and cell-site location information, DEA agents determined last year that a target of their international drug-trafficking investigation resided in “the Washington Heights area by 177th and Broadway.”
The information was not specific enough to identify the specific apartment building, however, let alone the particular unit.
Deploying a StingRay in the area, DEA agents identified Lambis’ apartment as the one emitting the strongest ping. Lambis’ father allowed authorities to search the house after they knocked on the door, and the agents found his son’s drugs and related paraphernalia.
Although prosecutors said that the father’s consent attenuated the privacy invasion, Pauley found no break in the “chain of illegality.”
Pauley also disagreed that Lambis forfeited his ownership of the information by turning it over to a “third party,” namely the cellphone provider.
“For both pen register information and CSLI, the government ultimately obtains the information from the service provider who is keeping a record of the information,” his 14-page opinion states, abbreviating cell-site location information. “With the cell-site simulator, the government cuts out the middleman and obtains the information directly.”
The Federal Defenders of New York, which represented Lambis, did not immediately respond to an emailed request for comment.
For the ACLU, the decision is momentous for civil libertarians.
“The feds are now firmly on notice that when they hide their intent to use invasive surveillance technology from courts and fail to get a warrant, their evidence will be suppressed,” the ACLU’s Wessler wrote. “This opinion strongly reinforces the strength of our constitutional privacy rights in the digital age.”
The U.S. Attorney’s office declined to comment.
Another challenge to StingRay-obtained evidence has been brewing in the Chicago-based Seventh Circuit. This case, still awaiting a decision, involves a felon charged with possession of a firearm in Milwaukee, Wisconsin.
The ACLU filed a friend-of-the-court brief along with the Electronic Frontier Foundation, recommending the court suppress the evidence.
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