Cell­phone track­ing case to set prece­dent

Court to weigh use by Metropoli­tan cops

The Washington Times Daily - - FRONT PAGE - BY AN­DREA NOBLE

Civil lib­er­ties ad­vo­cates and fed­eral pros­e­cu­tors will face off Tues­day in the D.C. Court of Ap­peals over the city po­lice depart­ment’s war­rant­less use of se­cret cell­phone track­ing tech­nol­ogy to lo­cate a sex­ual as­sault sus­pect.

The case rep­re­sents the first time the Metropoli­tan Po­lice Depart­ment’s use of the tech­nol­ogy, a cell site sim­u­la­tor known by the brand name St­ingray, has been chal­lenged at the ap­pel­late level. The case has at­tracted the at­ten­tion of the Amer­i­can Civil Lib­er­ties Union and the Elec­tronic Fron­tier Foun­da­tion — groups wag­ing le­gal bat­tles na­tion­wide to rein in law en­force­ment agen­cies’ use of such sur­veil­lance.

De­fense at­tor­neys have ap­pealed the rob­bery and sex­ual as­sault con­vic­tions of Prince Jones, ar­gu­ing that the po­lice depart­ment vi­o­lated his Fourth Amend­ment pri­vacy rights by de­ploy­ing a St­ingray to track cell­phones in his pos­ses­sion and ul­ti­mately to lo­cate and ar­rest him.

Pros­e­cu­tors from the U.S. at­tor­ney’s of­fice for the District of Columbia say it was un­clear whether the tech­nol­ogy was used to track Jones’ cell­phone or a cell­phone taken from one of the vic­tims — in which case Jones’ claims to pri­vacy vi­o­la­tions would no longer be rel­e­vant.

But they ar­gue in briefs filed in the case that even if po­lice tracked Jones’ phone, they still could have lo­cated him by track­ing the vic­tims’ phone. They also note that when of­fi­cers ze­roed in on Jones, he was on a pub­lic street and not in a home, where pri­vacy pro­tec­tions might have come into play.

Pri­vacy ad­vo­cates be­gan un­earthing use of the sur­veil­lance tech­nol­ogy by lo­cal po­lice de­part­ments over the past few years, but since then only a hand­ful of ap­pel­late courts have had the chance to weigh in on St­ingray use by law en­force­ment.

A D.C. Court of Ap­peals rul­ing on the case wouldn’t be bind­ing out­side of the na­tion’s cap­i­tal, but it will carry in­flu­ence when other courts con­sider sim­i­lar is­sues, said ACLU at­tor­ney Nathan Wessler, who will present ar­gu­ments Tues­day against war­rant­less use of cell­site sim­u­la­tors.

The de­vices work by mim­ick­ing cell tow­ers to trick cell­phones to con­nect to them, en­abling in­ves­ti­ga­tors to ob­tain iden­ti­fy­ing in­for­ma­tion about the phones and their pre­cise lo­ca­tions. Un­der nondis­clo­sure agree­ments with fed­eral law en­force­ment, lo­cal po­lice de­part­ments in pos­ses­sion of such tech­nol­ogy have fought to keep se­cret their use of the equip­ment — even go­ing to the ex­treme of drop­ping charges to avoid dis­clos­ing their use.

The D.C. Pub­lic De­fend­ers Ser­vice, which is rep­re­sent­ing Jones, notes in its brief that in the time since the ap­peal was filed, two other courts “have held that the Fourth Amend­ment re­quires the gov­ern­ment to get a war­rant be­fore us­ing a cell site sim­u­la­tor to track a per­son’s lo­ca­tion.”

The Mary­land Court of Spe­cial Ap­peals ruled last year that po­lice must es­tab­lish prob­a­ble cause and get a war­rant be­fore us­ing cell-site sim­u­la­tors. Mean­while, a Man­hat­tan-based fed­eral judge or­dered that ev­i­dence be barred from a case in which the Drug En­force­ment Ad­min­is­tra­tion failed to get a war­rant be­fore us­ing a St­ingray to track a phone to the apart­ment of a sus­pected drug dealer.

Jones was sen­tenced to 66 years in prison in 2014 after he was con­victed of sex­u­ally as­sault­ing two women who were con­tacted for es­cort ser­vices through Back­page.com.

MPD first be­gan track­ing his where­abouts by re­triev­ing the phone num­ber used to call the women from the es­cort ads, who were forced at knife­point to per­form oral sex and then robbed of their be­long­ings. Court records in­di­cate that in­ves­ti­ga­tors used data supplied by tele­phone com­pa­nies to ping the phone as well as one of the vic­tim’s stolen phones, and dis­cov­ered that they were in the same gen­eral area near the Min­nesota Av­enue Metro sta­tion in North­east.

Po­lice de­ployed a cell-site sim­u­la­tor to pin­point the ex­act lo­ca­tion of the phones, but of­fi­cers said dur­ing Jones’ trial in a lower court that they could not re­call which cell­phone was tracked by the de­vice. The sim­u­la­tor even­tu­ally ze­roed in on Jones, whom of­fi­cers found sitting in his car with his girl­friend out­side the Metro sta­tion. After of­fi­cers stopped Jones, they found in his pos­ses­sion the phone used to con­tact the women, their stolen cell­phones and a fold­ing knife.

Pros­e­cu­tors ar­gue that rul­ings by the Mary­land and New York courts are not rel­e­vant to the Jones case be­cause they both in­volved track­ing of cell­phones in­side de­fen­dants’ homes.

“The sim­u­la­tor re­vealed ap­pel­lant’s lo­ca­tion in plain view on a pub­lic street,” pros­e­cu­tors wrote in their brief filed in the case. “Ac­cord­ingly, the po­lice did not ob­tain any in­for­ma­tion per­tain­ing to the pri­vate con­tents of ap­pel­lant’s home, or any other area as to which ap­pel­lant had a rea­son­able ex­pec­ta­tion of pri­vacy.”

The Pub­lic De­fend­ers Ser­vice states that the is­sue came up in the Mary­land case and that the court “con­cluded that be­cause po­lice can­not know in ad­vance whether the tar­get phone is in a pub­lic or pri­vate space, the only work­able rule is a bright-line re­quire­ment that po­lice must ob­tain a war­rant ev­ery time a cell site sim­u­la­tor is used.”

Pros­e­cu­tors pushed back against claims this type of sur­veil­lance is a vi­o­la­tion of the Fourth Amend­ment, ar­gu­ing that the po­lice depart­ment’s use of a cell-site sim­u­la­tor does not amount to what the Supreme Court has de­fined as “tres­pas­sory search” of con­sti­tu­tion­ally pro­tected areas in­clud­ing peo­ple, houses, pa­pers and ef­fects.

They ar­gued that us­ing the tech­nol­ogy to find the phone “did not vi­o­late ap­pel­lant’s rea­son­able ex­pec­ta­tion of pri­vacy” in part be­cause cell­phone users have no ex­pec­ta­tion of pri­vacy when their phones are on and are transmitting sig­nals and lo­ca­tion data to wire­less com­pa­nies and cell tow­ers.

Mr. Wessler said the ar­gu­ment runs con­trary to cell­phone users’ as­sump­tion that they are not con­sent­ing to have their move­ments tracked by the gov­ern­ment just be­cause they carry cell­phones.

Given the large num­ber of by­standers, whose cell­phone in­for­ma­tion is also swept up when law en­force­ment de­ploys St­ingrays, Mr. Wessler said ju­di­cial over­sight should be required.

Though some states have man­dated that law en­force­ment ob­tain war­rants be­fore us­ing the tech­nol­ogy, and Jus­tice Depart­ment guid­ance now in­di­cates that fed­eral law en­force­ment agen­cies ob­tain war­rants in most cases, it is un­clear what poli­cies guide the vast ma­jor­ity of de­part­ments’ use of the tech­nol­ogy, Mr. Wessler said.

“There has been some steady move­ment for greater pro­tec­tion but the kind of patch­work na­ture of the pro­tec­tions speaks to the need for Congress to step in and for courts to ad­dress the is­sue,” he said.

The three-judge panel hear­ing the case Tues­day is com­prised of Judge Corinne Beck­with, an ap­pointee of Pres­i­dent Obama; Judge Phyl­lis D. Thomp­son, an ap­pointee of Pres­i­dent Ge­orge W. Bush; and Judge Michael Wil­liam Far­rell, an ap­pointee of Pres­i­dent Ge­orge H.W. Bush.

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