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List:       cypherpunks
Subject:    Use of Stringray requires warrant...sometimes.
From:       jim bell <jdb10987 () yahoo ! com>
Date:       2017-08-27 18:09:56
Message-ID: 1608663063.1771451.1503857396558 () mail ! yahoo ! com
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https://arstechnica.com/tech-policy/2017/08/court-locating-suspect-via-stingray-definitely-requires-a-warrant/




[extended quote follows]
 A federal judge in Oakland, California has ruled against the suppression of evidence \
derived from warrantless use of a cell-site simulator. The simulator, a device often \
referred to as a stingray, was used to locate the lead defendant in an ongoing \
attempted murder case. In the 39-page ruling, US District Judge Phyllis Hamilton \
notably found that the use of stingray to find a man named Purvis Ellis was a \
"search" under the Fourth Amendment—and therefore required a warrant. However, in \
this case, the judge also agreed with the government's assertion that there were \
exigent circumstances, along with the "good faith exception" to the warrant \
requirement. In other words, use of the stingray was wholly justified. "Cell phone \
users have an expectation of privacy in their cell phone location in real time and \
that society is prepared to recognize that expectation as reasonable," Judge Hamilton \
wrote, citing an important Supreme Court decision from 1967 known as United States v. \
Katz. But because Ellis was believed to be involved in another shooting that happened \
one day earlier on January 20, 2013, the judge felt there were exigent circumstances. \
"Though Ellis was not known to be the shooter, he was believed to be a suspect in \
possession of firearms," Judge Hamilton continued. "The need to prevent escape by a \
suspect presented exigent circumstances here." "Exigent circumstances" is the idea in \
American criminal procedure that law enforcement can search or seize persons or \
things if there are imminent circumstances where bodily harm or injury is in process, \
evidence is being destroyed, or a suspect is in flight. In such situations, a warrant \
is not required. Warrants required since 2015 anyway
Thursday's court order could provide a new incentive for a guilty plea for Ellis, who \
was located in an East Oakland apartment building by the FBI and the Oakland Police \
Department several hours after the January 21, 2013 shooting of a non-uniformed OPD \
officer. Three other men were charged in the case, although one of them pleaded \
guilty earlier this year. No trial date has been set.FURTHER READINGLawyer: Cops \
"deliberately misled" judge who seemingly signed off on stingrayEllis' attorney, \
Martha Boersch, did not immediately respond to Ars' request for comment. As Ars has \
been reporting for years, Ellis has provided rare insight into stingrays are used in \
practice to find suspects and the seeming lengths the government is willing to go to \
keep usage quiet. The surveillance tool has come under increasing scrutiny by \
lawmakers and activists in recent years. Since this case began, both the Department \
of Justice, which oversees the FBI, and the State of California now require a \
warrantwhen a stingray is used in most circumstances. Riana Pfefferkorn, a lawyer \
affiliated with the Stanford Center for Internet and Society, said that the judge's \
ruling was "careful," but she noted that it may not specifically matter, given that \
both state and federal policy has changed since Ellis and his co-defendants were \
arrested in 2013. "This is resolving something that happened over four years ago \
where on a going forward basis it may be a moot point," she told Ars.FURTHER \
READING"PING SUSP PHONE"—An Oakland shooting reveals how cops snoop on cell \
phonesWhen this case first began unfolding in federal court four years ago, \
prosecutors insisted that only one stingray was used. It turned out that there had \
been two—one first by the OPD, followed by another belonging to the FBI. The entire \
issue as to what level of privacy a person can expect over their location \
information, and what hurdles law enforcement must jump through to obtain it (through \
a stingray or other means), are still up for discussion. A related case, United \
States v. Carpenter, is pending before the Supreme Court. In Carpenter, the court is \
being asked whether law enforcement needed a warrant to obtain over 120 days of \
cell-site location information (CSLI), or whether a lesser standard was sufficient.

"The court's search analysis is based heavily on that one district's CSLI cases, \
which conflict with other circuits' rulings on CLSI and are going to be decided soon \
by the Supreme Court anyway," Orin Kerr, a law professor at George Washington \
University, told Ars. "Given that the constitutional analysis is largely based on \
issues the Supreme Court is about to revisit, it's not obvious that Ellis will have \
much influence on its own." [end of extended quote]


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