Cell-track­ing case ap­pealed to full US 7th Cir­cuit Court

Kuwait Times - - TECHNOLOGY -

A dis­sent­ing opin­ion by a fed­eral ap­peals court judge on po­lice use of se­cret cell­phone track­ing tech­nol­ogy has con­vinced a Mil­wau­kee man to take his case a step fur­ther. At­tor­neys for Damian Pa­trick filed a pe­ti­tion this week ask­ing for a re­hear­ing in front of the full US 7th Cir­cuit Court of Ap­peals, af­ter los­ing a split de­ci­sion in Novem­ber to the court’s three-judge panel. It’s the first time the use of cell tower sim­u­la­tors, known as stingrays, has reached a fed­eral ap­pel­late court, the Mil­wau­kee Jour­nal Sen­tinel re­ported.

“It is time for the stingray to come out of the shad­ows, so that its use can be sub­ject to the same kind of scru­tiny as other mech­a­nisms, such as ther­mal imag­ing de­vices, GPS track­ers, pen reg­is­ters, beep­ers, and the like,” 7th Cir­cuit Judge Diane Wood wrote in her dis­sent­ing opin­ion.

“Its ca­pa­bil­i­ties go far be­yond any of those.” Stingrays are suit­case-sized de­vices that im­i­tate a cell­phone tower and draw sig­nals from all nearby cell­phones, not just the tar­geted num­ber. It al­lows po­lice to zero in on the phone’s lo­ca­tion, down to a spe­cific apart­ment in a build­ing. The phones don’t have to be in op­er­a­tion, and some ver­sions of the tech­nol­ogy can even in­ter­cept con­tent, like texts and calls, or pull in­for­ma­tion stored on the phones.

The case stems from a 2013 in­ci­dent when Mil­wau­kee po­lice were look­ing for Pa­trick on a vi­o­la­tion of pro­ba­tion. When they found him in a car, there was a gun on the floor and he was charged with be­ing a felon in pos­ses­sion of a firearm. Months later, dur­ing a hear­ing on his mo­tion to sup­press the ev­i­dence, po­lice re­vealed they had found Pa­trick not based on a tip, as ini­tially stated, but by us­ing records from Sprint, his cell­phone ser­vice provider. Af­ter he en­tered a con­di­tional guilty plea and ap­pealed, his lawyers learned po­lice had sup­ple­mented the Sprint data with a real-time Stingray trace.

The ma­jor­ity panel rul­ing in Pa­trick’s ap­peal con­cluded that since po­lice had prob­a­ble cause to ar­rest Pa­trick for his pro­ba­tion vi­o­la­tion they didn’t need a war­rant. And be­cause he was in a public place, he had no pri­vacy in­ter­est in his lo­ca­tion, Judge Frank Easter­brook wrote. He and Judge Michael Kanne agreed there may be con­sti­tu­tional ques­tions about stingrays, but that Pa­trick’s case isn’t the right one to ex­plore them.

A US House com­mit­tee re­port is­sued Mon­day said clearer guide­lines are needed for law en­force­ment’s use of se­cre­tive and in­tru­sive cell­phone track­ing tech­nol­ogy, and po­lice and fed­eral agents should be up­front with a judge about their de­ploy­ment.

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