Did Feds' Use of Fake Cell Tower Constitute a Search?

hessian writes with this story in Wired: "Federal authorities used a fake Verizon cellphone tower to zero in on a suspect's wireless card, and say they were perfectly within their rights to do so, even without a warrant. But the feds don't seem to want that legal logic challenged in court by the alleged identity thief they nabbed using the spoofing device, known generically as a stingray. So the government is telling a court for the first time that spoofing a legitimate wireless tower in order to conduct surveillance could be considered a search under the Fourth Amendment in this particular case, and that its use was legal, thanks to a court order and warrant that investigators used to get similar location data from Verizon's own towers."

Comments

It is unquestionably a wiretap

[Anonymous Coward]

As they are intercepting communications, it is unquestionably a wiretap.

Whether the courts are still legitimate enough to declare that remains to be seen.

Re:It is unquestionably a wiretap

[alphacharliezero]

'Stingray's do not intercept communication. That's why they get around the wiretapping warrant requirements. They are designed to spoof the carrier's tower in order to ascertain only the location of a mobile device. So I don't see wiretapping as the issue. What IS troubling however is the fact that once law enforcement has found the suspect/device they as a rule WIPE THE DATA from the stingray. They've been doing this supposedly to prevent defendants/criminals learning how they were caught. The issue is that a judge signs a court order approving the use of the Stingray. Then after gathering evidence, law enforcement DESTROYS that evidence instead of handing it over to the court for review. All this to prevent the defendant from getting it during discovery. That practice will likely stop soon since it's motive was to keep the device itself a secret. Now that it's use is public knowledge, there's no reason to continue the charade...

Re:It is unquestionably a wiretap

[Wrath0fb0b]

a court order and warrant that investigators used to get similar location data from Verizonâ(TM)s own towers.

I'm really surprised again by Wired. The government got a warrant -- the same level of scrutiny they need to search your house or haul your ass to a concrete room. What more can they do to conduct a lawful investigation? The purpose of the warrant requirement is to make sure that probable cause is evaluated by a neutral and detached magistrate, not to bar all searches and make it impossible to catch identity thieves.

I'm firmly for electronic privacy but I think it's patently absurd to say there should be a higher standard for getting cell-phone data than physically entering a person's home or arresting him.

Re:It is unquestionably a wiretap

[khallow]

The problem is that the fake wireless tower appears to be outside the scope of the warrant. Keep in mind that judges do not issue blank checks when they write out a warrant. Doing something that's not in the scope of the warrant is just as illegal as if the warrant didn't exist at all.

Fed in the Middle?

[Anonymous Coward]

Are man in the middle attacks legal?

Re:Criminals were captured

[Anonymous Coward]

Suspected criminal...

Re:Criminals were captured

[Dunbal]

Yeah throw due process out the window. You realize that you could be turned into a criminal at any time with just the stroke of a pen from a politician, right?

Re:Criminals were captured

[AngryDeuce]

Because criminals are entitled to a complete and proper defense?

When it comes to privacy, every inch we give results in another mile taken by the government. Consider how the Patriot act evolved from where it began back in 2001 to where it is today, the way the TSA began and the way it is being pushed out beyond it's original boundaries with people advocating and supporting random vehicle searches on Interstates, shipping, busing, backscatter X-ray being used for major sporting events which will eventually trickle down to every public building and who knows how far beyond that...

The Fourth Amendment exists because privacy is necessary for liberty and a free society.

Re:The Feds agreed it was a search

[silas_moeckel]

IF they have a warrant for a targeted wiretap why not go to verizon??? This device exists so they can avoid having to get warrants all the paperwork etc that verizon might require. The FCC should come down on them hard unless for impersonating a cell tower they did not have the rights to use those frequencies. It sounds like they are trying to use there few legit cases to justify them having and using these devices.

How long before the real criminals figure out how to use encrypted voip? I already have this on my phone connecting me to the office pbx.

Re:Criminals were captured

[sribe]

Because criminals are entitled to a complete and proper defense?

Not really. It's because it takes a complete and proper defense to be (fairly) certain that the defendant is in fact a criminal.

Re:Criminals were captured

[Oxford_Comma_Lover]

United States v. Jones will be argued in the Supreme Court this week, on whether warrantless tracking of a drug dealer by putting a GPS tracker on his car requires a warrant on the fourth Amendment.

An idiot would think that we were arguing that case in the Supreme Court to defend drug dealers. Maybe the guy actually arguing it is--but the reason that we are considering it as a society, the reason we care about these things, is because of the risk of it being done to innocent people. The risk of government tracking everyone as part of its standard law enforcement duties. (I'm not saying NSA doesn't do that now, but law enforcement doesn't usually.) There should be some limit on the power of the people acting for the state--Something that at least requires a police officer to say "there is probable cause to search this person and here's why..."

Re:Criminals were captured

[billcopc]

Because sometimes the criminals are the ones on our payroll.

If I set up a fake tower to sniff people's cell packets, I go directly to jail. That's practically indefensible.

If the government does it "to catch a criminal", they need to request permission via the proper channels, i.e. warrants. It is a special privilege that must be diligently controlled and protected from abuse. If we start giving law enforcement officials (and their subcontractors) carte-blanche to effectively commit criminal acts, without oversight nor disclosure, in the name of crime-fighting, then democracy is effectively abolished.