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US court rules ‘stingray’ use without warrant unconstitutional

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With a 2-1 vote, the Washington DC Court of Appeals has overturned the Superior Court conviction of a man found by police using stingray surveillance technology without a warrant. The judges cited the Fourth Amendment in their decision.

StingRay, manufactured by Harris Corporation, mimics a mobile phone mast in order to track down a suspect using their own mobile phone. Once the StingRay device is close to the phone of the suspect, the suspect’s phone pings a signal off the device. This allows for the phone to be located.

This method is used by the FBI, the Immigration and Customs Enforcement and other law enforcement organisations across the US, Canada and the UK. The generic term ‘stingray’ now describes this class of surveillance devices.

After a man was accused of two sexual assaults and robbery at knifepoint, he was tracked down by US law enforcement using stingray technology. Following his conviction, he appealed on the grounds that the evidence against him was largely the product of warrantless use of stingray, which constitutes a “search”.

According to the court of appeals, its use without warrant violates the Fourth Amendment, which promises the right to “be secure in their persons, houses, papers and effects, against unreasonable searches and seizures”, requiring a warrant to do this.

“Under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cellphone invades the person’s actual, legitimate and reasonable expectation of privacy in his or her location information and is a search,” the judges concluded.

In a statement to Reuters, Nathan Freed Wessler, a lawyer for the American Civil Liberties Union, said that: “This opinion strongly reinforces the strength of our constitutional privacy rights in the digital age.”

This is not the first time that such simulators have come under scrutiny. In July 2016, a federal judge rejected evidence collected using stingray trackers in a first legal objection to the technology, stating that “absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device”.

So far this year, two bills have been introduced to the House of Representatives, enforcing the requirement that law enforcement organisations acquire a warrant before using stingray technology for surveillance.

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