State Laws Start Catching Up to Police Phone Spying

American law enforcement has fallen in love with the Stingray, a type of gadget that impersonates cellphone towers in order to gather information from people’s mobile devices. The small devices can be driven around in trucks, attached to police officers' bodies, and even strapped to the bottom of planes and flown near people of interest. 

Some state lawmakers seem distinctly less charmed by Stingrays, which are also called cell site simulators. On Monday, for example, legislators in Washington State voted a bill out of a Senate committee that would put restrictions on their use. The bill already passed the state House unanimously. If signed into law, it would become the strongest state limits on the books covering these cellphone interceptors.

Washington’s bill would require law enforcement personnel to show probable cause and obtain a warrant before using a cell site simulator; explain how the device would be used and what data will be gathered; and limit the amount of data inadvertently gathered about bystanders. The last requirement is a tricky one: By nature, Stingray-type gadgets gather information about all phones within range. The provision would ban the use of that information in other investigations or prosecutions. Anything picked up from bystanders without a warrant would need to be immediately destroyed.

Similar legislation already passed in Virginia, and the American Civil Liberties Union calls the state first in the nation to specifically require a warrant for cell-phone intercepters. About a dozen states have general laws on the books that seem to require warrants for Stingray use, but advocates and law enforcement officials don’t always agree on how those statutes should be interpreted. The San Bernardino, Calif., county counsel, for instance, replied to a public records request by a local reporter last fall with a letter saying that the county isn't required to obtain a search warrant before using Stingrays because the law requires only warrants for devices that track movement. The letter said law enforcement instead obtains a court order. 

While some observers argue that any use of a Stingray is unconstitutional by default, civil libertarians have welcomed the push by state lawmakers to add restrictions. “This Virginia law shows a particular interest to make sure there isn’t a loophole,” says Nathan Wessler, a staff attorney at the ACLU. 

The Washington legislation goes further than Virginia's law by requiring a more stringent approval process in which police must lay out what they’re doing. In the past, judicial oversight hasn’t proven completely effective on its own. Washington Representative David Taylor, a Republican who is pushing the bill, pointed to the fact that judges in Pierce County had been approving warrant requests that they only later learned would apply to Stingrays. “They had no clue what they were authorizing or the scope of information that was being collected,” he said during a public hearing. 

Taylor has been at the center of a wave of activity in Washington over law enforcement’s use of technology. Last fall a man began requesting every single video gathered by police-worn body cameras, sparking an effort to reform the state’s liberal public records law. And both houses of the state legislature last year approved a bill  regulating government use of drones, though it was vetoed by the governor. A subsequent version of the bill was introduced this year and has passed the House.

Taylor has tried to push a single, sweeping bill strengthening protections against overreach by law enforcement, but that approach has stalled. “For whatever reason, there’s been a lack of desire to move the broad cover-everything bill and focus on the specific technologies,” he says. “I’m O.K. with that; we’ll get there.”  

There has been little opposition to the Stingray bill in Washington. Law enforcement agencies have stayed out of the debate, volunteering little information about how or even whether they use Stingrays. At a public hearing, meanwhile, Taylor admitted that he had no idea which agencies even own the devices. 

At least 48 agencies from 20 states and the District of Columbia own cell site simulators, according to the ACLU. The refusal of law enforcement officials to say anything about how the devices work or how they are used has served only to enhance their sinister reputation. The insistence on secrecy has worked to the advantage of some defense lawyers, who have gained traction in court by pushing for disclosure. In a recent case in Baltimore, a judge threatened to hold a detective in contempt of court for refusing to discuss the technology; prosecutors decided against using the evidence rather than push the matter. A man accused of robbery in Florida got a generous plea deal after it became clear that details about the technology would come out in trial. 

State laws can't completely regulate the use of Stingrays because federal agencies also use the devices. While some privacy advocates would like to see the devices banned altogether, there is little chance that will happen in the near future. But combined with action in the courts and calls from federal lawmakers for more attention to the issue, local lawmakers are illustrating a key point: The secret is out.