A MARYLAND appellate court on Wednesday explained its reasoning for its landmark decision earlier this month requiring police to establish probable cause and get a warrant before using a Stingray, or cell-site simulator.
The Maryland Court of Special Appeals rejected the state of Maryland’s argument that anyone turning on a phone was “voluntarily” sharing their whereabouts with the police. And the 73-page opinion also harshly rebuked Baltimore police for trying to conceal their use of Stingrays from the court.
“This is the first appellate opinion in the country to fully address the question of whether police must disclose their intent to use a cell-site simulator to a judge and obtain a probable cause warrant,” said Nathan Wessler, a staff attorney with the ACLU’s Project on Speech, Privacy, and Technology.
The panel of judges stated that “cellphone users have an objectively reasonable expectation that their cellphones will not be used as real-time tracking devices, through the direct and active interference of law enforcement.”
In court testimony last April, a Baltimore detective revealed that the Baltimore Police Department had used Stingrays more than 4,300 times since 2007, repeatedly failing to notify courts of their use in criminal cases.
Wednesday’s decision upheld the order of a Maryland trial court, which threw out evidence in the case of Kerron Andrews, a suspect in a 2014 shooting. In order to locate Andrews, police filed a “pen register” application, which has lower standards than a warrant. The application explained that Baltimore police would collect data from Andrews’s wireless service provider. Instead, they secretly used an advanced Stingray, called the “Hailstorm,” without notifying the judge.
Last year, the Baltimore Sun published a non-disclosure agreement that the Baltimore Police Department signed in 2011 with the FBI and Harris Corporation, a leading manufacturer of Stingrays. The agreement required the department to conceal its use of Stingrays “during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure … or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.”
Police departments across the country have been signing similar agreements, and prosecutors have even dropped criminal cases to avoid facing questions about Stingrays.
Judge Andrea Leahy, writing for the panel, admonished the department’s secrecy: “We perceive the state’s actions in this case to protect the Hailstorm technology, driven by a nondisclosure agreement to which it bound itself, as detrimental to its position and inimical to the constitutional principles we revere.”
The ruling represents a stern warning to police not to do that again.
“The court’s withering rebuke of secret and warrantless use of invasive cellphone tracking technology shows why it is so important for these kinds of privacy invasions to be subjected to judicial review,” said Wessler.
Wednesday’s opinion adds to the growing list of appellate precedents opposing warrantless location tracking. In 2012, the U.S. Supreme Court unanimously ruled that police had to obtain a warrant before installing a tracking device on a suspect’s car. In 2014, the justices unanimously ruled again that the seizure of cellphone data during an arrest is unconstitutional. Federal courts have since found the warrantless seizure of location data unconstitutional, but Wednesday’s opinion is the first to extend the precedent to Stingrays.
Related:
Top photo: A Baltimore police mobile command center pulls up in front of the Federal Courthouse in Baltimore, Md., in October 2002.
The article notes, “The agreement required the department to conceal its use of Stingrays “during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure … or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.”
Especially egregious is the contractual obligation to to keep secret (i.e. lie) in response to court ordered disclosure. It’s doubtful such a provision is enforceable because you cannot enforce a contractual obligation that requires breaking the law as this does. And what exactly would the FBI or Harris Corp do if Baltimore broke that agreement? Take them to court? That’s the only remedy for breach of contract.
The non-disclosure agreement is between the Baltimore police department AND the FBI. So the rebuke should fall not just on the local police, but on the Justice Department for insisting on this potentially illegal secrecy in the first place.
What I never understand is why there are in fact companies building and profiting from the manufacture and sales of devices that directly infringe upon our liberties. Why are they not targeted and exposed for their machinations? All regimes, and the USSA is no different, have their crony businesses profiting from the enslavement of their people.
WE THE PEOPLE, must give Alex Emmons important credit for exposing another high tech. equipment by the law enforcement community from federal to American Native Police Bureaus to illegally follow the orders of the super rich and powerful people that want the public to let officers use of unjustified deadly physical force against restrained innocent people known as Kill At Will Without Due Cause. Breathing while black is NOT illegal. Google: Jerry Atlansky to read about our research/investigations since Jan. 1, 2006 as all volunteers that created our program, Truly Reforming Law Enforcement within the nations only law, Oregon Senate Bill 111 Law Enforcement Use of Deadly Physical Force passed in 2007 to be in full force July 1, 2008.
Per FBI Records for 2012 at major cities for all types of murders Portland, Oregon had the lowest total 20 murders to be compared to Chicago with the very worst record of over 500 Murders with NO specific procedures, training, accountability, new equipment to replace police stun guns and our organization will monitor the new policies and training for the first independent national police board.
Make every day terrific,
Jerry Atlansky Founder/Chairperson
United States Police/Oregon State Police-
Independent Citizens Review Board
Portland, Oregon 97213
[email protected],
1-503-490-4433
We reply within hours as our only goal is to save thousands of innocent lives.
While we should cheer any help the courts can render in turning back the Orwellian powers the “state” has granted itself, we need to remind ourselves that there is already a document in place that’s supposed to protect us from an obtrusive police state, the constitution. Sorry for not cheering with you Alex, but we’ve been here too many times to get excited. The police and spy orgs are NOT going to willingly give up their toys. They can always find a sympathetic judge to whom they can appeal.
What does it mean when the police are “rebuked” – nothing really I reckon. There is no accompanying order for the police to do away with their technology and they just find another judge or make it look legit by some means and do the same.
When is the press going to start talking about the reality of the police state in which we now live? Why does the Intercept deny the reality of the fully militarized police with command chains all the way to the Pentagon?
The article suggests that there is a functioning democratic judiciary when there clearly is not.
In the real day to day world nothing changes because of this ruling.
Warrantless location tracking along with RFID(size of a rice grain transmitting location for the purpose of tracking) kind of implants without the knowledge and consent of people is not just wrong is against the statutes of the constitutional rule of law that the corrupt hands are piercing until there is nothing to pierce.
Privacy= at the core it is belonging/pertaining to oneself/personal(not the state not open to the public). One’s own(domain) as the state of freedom from intrusion. Thus, do not let the usa-governance re-redefine and malign it with their manipulations, fallacies and deceptions. Therefore, this indeed is its pristine/prime RADICAL tenor/meaning.
to Privatize: taken away from the public domain.
Privacy::::::::: right to do things without any ones involvement.
to Deprive:::: take away privacy.
As one brilliant Russian stateman said, “start calling things by its name”
DO you wish and plan to perpetrate the very usa-patriotic thing to do? Then begin by sabotaging encryption and abolishing privacy. You plan a new world order or rather a one world government while under the voice of democracy? Lay first the foundation of blanket surveillance while the statutes of the constitutional rule of law do not struggle to be pierced until there is nothing else to pierce. – Alejandro Grace Ararat.
Obama is listening, FBI, NSA, InfagGard.,
I’ve got $100 that says heads are exploding exponentially at the FBI, DOJ, the Harris Corp., and a thousand police departments across the nation, and 10k attorneys are grinning from ear to ear. Meanwhile, I’m nominating this judge for this years award for Great Moments in Handing Government Attorneys Their Ass.
National Security Letters
http://www.theregister.co.uk/2016/03/31/reddits_warrant_canary_shuffles_off_mortal_coil/
…So it now seems as though the NSA, FBI, or other unknown agencies have been tapping into Reddit’s servers to gather information on its users. Because of the restrictions involved, we won’t know quite what has happened, but it could be anything from a one-off investigation all the way through to Reddit’s servers now being a part of the NSA’s PRISM monitoring scheme.
Because of the highly secretive nature of National Security Letters, the targets of investigation also can’t be informed. You’d hope the data request was made for legitimate reasons, not just to scope out who has a plushie fetish. But we’ll probably never know….
http://www.usatoday.com/story/news/2016/03/31/200-imprisoned-based-illegal-cellphone-tracking-review-finds/82489300/
Defense lawyers in Baltimore are examining nearly 2,000 cases in which the police secretly used powerful cellphone tracking devices, and they plan to ask judges to throw out “a large number” of criminal convictions as a result.
Proves people aren’t honest…and the decision also proves not legal
Anyone who cares to dive just a bit deeper and farther out knows well that there is way more than stingrays out there in the ocean, but well diving is stressful, not that rhetorical:
http://www.washingtonsblog.com/2016/01/targeted-individuals-testimony-current-government-covert-torture-control-experiments.html
http://www.washingtonsblog.com/2016/01/targeted-individuals-us-01-must-avoid-arrests-obvious-crimes-centering-war-money-lies.html
truth and peace and love,
RCL
Here we are again with another episode of LIARS CHEATS & THIEVES. All predatory dictator regimes really love and thrive on spying, stealing privacy, trampling on the population and keeping them in the dark. If you were to rank countries everywhere, dictators all over the planet would be ashamed that the u.s. ranked lower than them.
ah- there is another alarming possibility to this situation which is “How dare you coppers keep us judges out of the loop on this warantless stuff! What are you doing, trying to put us out of a job?”.
Let’s hope that’s not the case…
The court rendered a very good opinion in STATE OF MARYLAND v. KERRON ANDREWS. It absolutely makes me sick at the way in which the Federal Government is aiding and abetting illegal searches of sovereign citizens by secretly providing Stingray technology to Local Law Enforcement Agencies. A vote for Hillary is tantamount to more of the same type of unwarranted invasions of privacy. On can only hope that State and Federal officials get a taste of their own medicine when like technologies catch them with their own corrupt hands in the cookie jar.
https://www.emptywheel.net/2016/03/30/bob-litt-spins-sharing-nsa-collected-comms-with-dea-and-fbi-as-harmless/
While both CIA and FBI had to adopt minimization procedures before receiving raw 702 data (the equivalent of what is being done here), those minimization procedures are actually more permissive than NSA’s. Significantly, both agencies are permitted to copy the metadata they receive in bulk, basically so they can dump that data into their own metadata databases. And, barring the publication of the newly more restrictive guidelines on FBI’s back door searches, we should assume EO 12333 back door searches, like FBI’s 702 back door searches at least until recently, aren’t even tracked closely, much less noticed to defendants.
Obama’s FBI requiring written approval to disclose this, and Hillary’s likely agreement with such policies should be a campaign issue.
Hint, hint… anyone from Bernie 2016 out there reading this?
The slap on the wrist rather than prosecutions, in a country where “rule of law” is supposedly still important should be the main focus in a campaign/debate discussion or speech.
Obama’s failure to prosecute the Bushie torturers and Wall Street fraudsters are even greater violations, but the obvious pattern that has emerged is disturbingly un-American (if you believe what our leaders claim about rule of law and values and such).
What is it again… law for thee, none for me?
As we can see with the Trumpon and Crud, the possible return of torture as US policy was enabled by Obama’s failure to prosecute these war crimes.
Wall Street fraud is almost guaranteed to continue and even be worse due to the failure to prosecute.
The slap on the wrist isn’t going to dissuade the FBI and police from continuing to use these technologies.
Real consequences are needed, and it’s going to require either executive action or legislative action… or probably both.
And for that, we need leaders, not what we’ve had.
A
Yet another revealing situation the LIARS CHEATS & THIEVES are running America (into the ground).
America is toast, burnt toast.
“Real consequences are needed, and it’s going to require either executive action or legislative action… or probably both.”
The possibility of either of those two things happening are remote as long as the people are kept sated with enough food and alcohol, fuel for their vehicles, new smartass phones at regular intervals, and plenty of entertainment. Oh yeah, and the extremely rare possibility that “you too can get rich by winning the lottery”. Speak out people, before the pitchforks are brandished.
The Court held “We perceive the State’s actions in this case to protect the Hailstorm technology, driven by a nondisclosure agreement to which it bound itself, as detrimental to its position and inimical to the constitutional principles we revere.” I believe that to be an accurate statement. However, I wish the Court had gone farther and affirmatively declared that such nondisclosure agreements are void as contrary to public policy. It almost got there, but not quite. Yet that is the clear implication of its statement.
Information seeks ubiquity. Future people will not lie or hide.
Interesting that the govt didn’t want widespread use if stingray disseminated that local authorities were using devices. The govt agencies are out of control in their intrusive technological surveillance. The FBI constantly is doing everything they can to increase their capacity to freely access our information. The recent relentless Apple case being just one example. They almost assuredly had a way to crack that phone they just wanted to make their job easier and let the public know their reach. Also I don’t believe anything they say. Their saying that they’re the good guys isn’t enough. They now possess the ability to manufacture a non-existant crime if they so choose. So we now have to watch what we’re doing or perhaps be accused of crimes we don’t commit. Similar to the old Soviet Union, scary. Gone are the days of real freedom and I don’t care because I’m not a criminal; but with the right admin., and one or two attacks that could change in a hurry.
Agreed.
Good job, Alex. The experience you are getting as an intern is turning you into a better journalist.
Keep improving and never stop.
You seem to be a voice of opposition to the prevailing opinion in the comment sections here. I’ve seen you more than once now.
Your opposing opinion is valuable, but would be even more valuable if you offered the readers a more detailed explanation as to why you disagree with the prevailing opinions here.
Thanks
Well I guess this is more than we usually get. However, repeatedly and intentionally misleading judges and such should be worth more than the equivalent of a sternly worded letter.
STASI are out of control with devices. Issuing to contractors and “neighborhood snitch watch” programs.
Hailstorm has complete access to cell: lenses, mic data, apps, install malware, compose text…… Range about 2 miles, barium and aluminum may increase range.
Politicians and ACLU fear the potential of devices, data can be used out of context or cherry picked to incriminate anyone.
Referring to fear as inaction by Politicians and ACLU, to cover their butts.
The FBI is creepy
sounds like a lot of cases used evidence that is inadmissible. Sounds like grounds for an appeal.
If this really amounts to anything and is not about bunch of double then a whole boat load of convictions are getting tossed.
For now it’s just words.
I feel like I just heard Jim Nabors doing his famous “Gomer Pyle” catch phrase… “Surprise, Surprise, Surprise”
As was highlighted a few days ago in the discussion between
Glenn Greenwald, Noam Chomsky, and Edward Snowden,
there are (at least) two kinds of rights to privacy within the fake U$A.
There is that which is implied to be an individual’s right
and then there is the very real privacy of the privateers.
The fake cell phone towers which are a key component of
the privatized agenda of the (so-called) federal government and
its darling corporate criminal associates like Harris corporation
are not seen as violating the privacy of their victims.
They are just out there collecting, collecting, collecting…. and
anyone within their extending reach has had their personal
private information taken without consent by a private corporation’s
product which is supported by the victims taxes with the guidance
of number of the federal agencies which are also supported by
their victims taxes because the
“Security”
of a profitable privatized predatory system is all that separates
the clergy of this capitalist church from the “human resources”
upon which it feeds.
This is the privateers definition of democracy –
all of life has an equal opportunity to be a source of privatized profits.
This is the institutionalized project of democrats and republicans alike.
The judges who decided against the use of the information
which was acquired through random predatory surveillance
are on the correct path to get away from the fake U$A,
but the fake cell phone towers are still out there
collecting, collecting, collecting…..
because “In god we trust” is still on the money
because the money is the god and in the fake U$A,
like in so many other sadomasochistic societies,
you can’t get enough of god.
Track em and hack em. The GOP and the party of less government. Less for them anyway, more for us.
I wouldn’t be giving the D’s a pass on this. Just because they have a couple people who are on the right side of this and a few more who only pretend to be doesn’t mean the Democratic party as a whole haven’t been side by side with Republicans tearing down the 4th amendment.
Most of us know that democracy is merely a nice suggestion that once upon a time might have been in play in the US. Now we know the the ‘parties’ are there for the corporate interests of their clients. The taxpayers help support these interests and screw any and everyone they can along the way. The main difference in the ‘parties’ as I can see, is one wants to add a theocracy as another layer of control over the subjects/citizens set to superstitious beliefs that were in play 2,000+ years ago. It’s the 21st century and it’s time to grow up, throw off govt intrusion and keep silly neliefs out of public policy.
“…a stern warning…”
It is to laugh.
Sounds like something the Obama DoJ would want to look in-to … but I seriously doubt it will.
What constitution?
“a non-disclosure agreement that the Baltimore Police Department signed in 2011 with the FBI and Harris Corporation, a leading manufacturer of Stingrays. The agreement required the department to conceal its use of Stingrays “during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure … or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.”
the Maryland court ‘harshly rebuked them’ for a documented case of Obstruction of Justice. The document is the signed agreement; the obstruction was to conceal all evidence including the agreement itself of the collusion by the company and the police to hide evidence from the court.
A few people should be going to prison except they are powerful like the police and part of the plutocracy of the corporations.
Whatever one calls it, someone had been try to expose it:
fightgangstalking.com (JTTFs, with CIA input is my best guess)
Dismiss is, if you must. Do so at your own peril, at the peril of your children and grandchildren.
Correction, but it bears repeating:
Do so at your own peril, and at the peril of your children and grandchildren.
Next: “US Star Chambers and Mass Murder By Voter Endorsed Extra Judicial Torture”.
No? Not yet? US journalists and Mr. Ody still more interested in gadgets? My mistake.