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2014-06-26

Supreme Court Says Warrants Needed to Search Cellphones, But are "Stingrays" a Police Workaround?

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The Supreme Court delivered a resounding victory for privacy rights in the age of smartphones Wednesday when it ruled unanimously that police must obtain a warrant before searching the cellphones of people they arrest. The ruling likely applies to other electronic devices, such as laptop computers, which, like cellphones, can store vast troves of information about a person’s private life. The ruling makes no reference to the National Security Agency and its vast web of cellphone spying. But some NSA critics say it signals a greater understanding by the court of today’s technology and its implications for privacy. We get reaction to the ruling from Nathan Freed Wessler, staff attorney with the Speech, Privacy, and Technology Project at the American Civil Liberties Union. He also discusses police use of "Stingray" spy devices, which mimic cell towers and intercept data from all cellphones in a certain radius.

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: The Supreme Court has delivered a resounding victory for privacy rights in the age of smartphones. On Wednesday, the court ruled unanimously that police must obtain a warrant before searching the cellphones of people they arrest. The ruling likely applies to other electronic devices, like laptop computers, which, like cellphones, can store vast troves of information about a person’s life.

The decision involves two cases, including that of a California man, David Riley, who was sentenced to 15 years to life in prison after police pulled him over for expired vehicle tags, found guns in his car and then searched his phone, discovering data used to tie him to a shooting.

AMY GOODMAN: Wednesday’s court ruling makes mention of the National Security Agency and its vast web of cellphone spying. But some NSA critics say it signals a greater understanding by the Supreme Court of today’s technology and its implications for privacy. Chief Justice John Roberts delivered the opinion of the court. On the final page, he wrote, "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."

Well, to talk more about the ruling, we’re joined by Nathan Freed Wessler, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project.

Nate, welcome to Democracy Now!

NATHAN FREED WESSLER: Thank you.

AMY GOODMAN: Talk about the significance of this unanimous, nine-to-zero ruling.

NATHAN FREED WESSLER: That’s right. It’s really amazing. It’s an unequivocal affirmation that the Fourth Amendment still has vitality in our digital age. The court held that when police arrest a person and search their cellphone or seize their cellphone, they need to go to a judge, get a warrant based on probable cause before they can search the contents of that phone. And that’s important because, as the court described, our phones contain staggering quantities of personal and private information about us. Our phones contain things like years of our emails, our text messages, photos, financial records, medical information, information about our intimate relationships. And police no longer are able to go on fishing expeditions through those records without getting a warrant first. The court understood and recognized that digital searches in the 21st century require 21st century rules.

JUAN GONZÁLEZ: Well, Nate, I wanted to go back, because it really was an amazing decision and strongly worded. Chief Justice Roberts writing the opinion for the nine-zero vote said, "[A] cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." So, your sense of the fact that both the conservative and the liberal wings of the court on this were unanimous?

NATHAN FREED WESSLER: Yeah, it’s really amazing, and it reflects a complete consensus that the aggregation of our sensitive digital data requires more robust protections from the court, because it poses more acute privacy problems under the Fourth Amendment. I mean, as the court recognized, you know, years ago in the analog world, we never would have had the kind of staggering quantities of personal communications in our houses that we now have in our email saved on our phones, or on our other digital devices, for that matter. And the court’s opinion applies directly to searches of cellphones, but clearly the logic extends equally to other kinds of computers—tablets, desktops, laptops. And it also starts to provide a roadmap for courts to look to when they’re addressing other kinds of electronic searches, whether it’s cellphone tracking or laptop searches at the border or other kinds.

JUAN GONZÁLEZ: And what about the whole issue of the NSA spying, the implications of this decision in terms of cases that may come up before the court on that, as well?

NATHAN FREED WESSLER: Yeah, I mean, the court was careful not to directly address that question, but the logic the court employed in its reasoning, I think, provide strong indication that courts around the country can look more carefully at those issues. Whenever the government is trying to troll through large quantities of our private digital information and learn the most intimate details of our lives, the Fourth Amendment has something to say about it now. And I look forward to courts really grappling with this issue, using this as guidance.

AMY GOODMAN: Can you talk about the two cases on which it was based?

NATHAN FREED WESSLER: Yeah, so the cases came out of California and Massachusetts. One involved—the California case involved a smartphone. The Massachusetts case involved a more traditional, older flip phone. And police in both cases took the phones after arresting somebody, searched through them without a warrant, and the court held that the evidence that comes from those searches cannot be admitted against people at trial, because those are unconstitutional searches. And it really—it shows how sensitive that information is, and it really is going to have a practical impact on police-citizen interactions, police interactions with people, all over the country.

AMY GOODMAN: What can people practically do, whether they’re at the airport, on a border, on the street, when the police or customs agents takes their digital equipment?

NATHAN FREED WESSLER: Well, the first thing is, people now—they know that they do not need to consent to these searches. You know, calmly tell the officer, "I do not consent to this search." And then, if the officer insists on continuing to search the phone, then, you know, a reasonable affirmation of your rights, a statement that the Supreme Court has said that you need a warrant, would be appropriate. And then, it will be up for the courts to sort it out after the fact, but as of now, police are on notice that there is a firm rule: They need to get a warrant.

JUAN GONZÁLEZ: Well, the Justice Department immediately reacted to the court decision. The Justice Department spokesperson, Ellen Canale, said, quote, "We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant." What’s your response to the Justice Department’s immediate response?

NATHAN FREED WESSLER: Well, it’s not surprising, and really it’s nothing new. In all kinds of searches, police have for a long time had the power to secure a crime scene or secure a home while they go to try to get a warrant. And that’s fine. And if they can demonstrate probable cause, that they have real reason to search this phone, then they’ll get a warrant. But if they can’t, the judge is going to turn them down, and they’ll have to turn that property back over to the person they’ve searched.

AMY GOODMAN: Let’s talk about Stingray spy devices, which are being used by police across the country. The Associated Press recently reported the Obama administration is pressing local police departments to conceal information about their use of powerful spy equipment like Stingrays, which mimic cell towers to intercept data from all cellphones within a certain radius. This is a clip from a report by News 10 in Sacramento about the secrecy surrounding their local Sheriff Department’s alleged use of the technology.

NEWS 10 REPORTER: During our investigation, it became clear the Sacramento Sheriff’s Department couldn’t get its story straight about using Stingray technology. Originally, it gave us an invoice from the maker of the device, the Harris Corporation, showing the department bought a high-powered antenna that extends the range of Stingrays. Then it said, quote, "this technology comes with a strict non-disclosure requirement. ... It would not be appropriate for us to comment." And finally, it said more documents from the Harris Corporation, quote, "exist that were not disclosed." The department’s attorney said the sheriff didn’t have to give us the records and cited all sorts of public records exemptions, including a state law written to protect railroads.

AMY GOODMAN: The ACLU actually had records they were seeking on Stingrays seized by U.S. marshals in Sarasota, Florida. Is that right, Nate Wessler?

NATHAN FREED WESSLER: That’s right. Stingrays, just to give a little background, are devices that police use to mimic cellphone towers and trick people’s cellphones into reporting back their electronic serial number and other identifying information and their location. So these are powerful police tools. And we’ve been seeking information about them around the country, including in Florida and including in Sarasota. And when we requested records from the Sarasota Police Department about their use of these devices, they initially told us that they had records, and they were willing to let us come and inspect them in their offices. And then hours before that appointment, they emailed to say that they were canceling the meeting, because the U.S. marshals office had asked them to, and the Marshals Service was asserting that they own the records. And then, while we were negotiating with the police about how we can inspect these records, incredibly—and I’ve never seen this in my years of doing public records work—the U.S. marshals sent somebody down in a car from the nearest field office, seized the boxes of records and physically removed them to an undisclosed location, thus removing them from the jurisdiction of the Florida courts and from the view of the Florida and the national public.

JUAN GONZÁLEZ: And do you have any sense of how widespread the use of these Stingrays is?

NATHAN FREED WESSLER: We know it’s quite widespread, and we know that dozens of state and local police departments, as well as the FBI and the marshals and other federal agencies, are using them. A recent ACLU investigation of records obtained by the press and by our own affiliates and our national office, and through Internet searches, has determined that at least 38 state and local police departments in 15 states have purchased these. And that’s aside from the agencies that are borrowing them from the U.S. marshals or the FBI or the state police, and it’s aside from the numerous agencies that we still haven’t gotten records from.

JUAN GONZÁLEZ: But to erect enough of these to be able to cover a city must be a pretty big cost, isn’t it?

NATHAN FREED WESSLER: Well, the way that we’ve seen them being used so far is that police deploy them in particular investigations. Often they’re looking for a particular cellphone, and they’ll drive around a city or a suburb looking for that cellphone. Now, part of the problem, and why we’re so concerned about these devices, is that even when police are trying to locate a particular person’s phone, these devices work by sending out a signal that triggers every phone in the area, every innocent bystander’s phone, into reporting back its location and its identifying information. And we’ve been asking basic questions, like "Are police getting a warrant? Do they have internal policies to protect the privacy of these innocent bystanders? And, you know, have they—have they implemented privacy protections that we can rely on?" And police have overwhelmingly resisted answering those questions, partly at the behest of the federal government, the FBI and the marshals.

AMY GOODMAN: Well, Nate, we want to thank you for being with us. Nathan Freed Wessler is staff attorney with the ACLU’s Speech, Privacy, and Technology Project. When we come back, we go back 50 years. It was 50 years ago on June 21st that three civil rights workers—James Chaney, Mickey Schwerner and Andrew Goodman—were murdered in Mississippi. We’ll go to Jackson. Stay with us.

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