Is your smart TV spying on you? Our authorities listening to your conversations on your smartphone? And what are those voice activated smart devices in your house learning about you? With attensions concentrated on these perhaps too smart tech devices, it seems concerns have faded about police tracking down the location of a regular cell phone. After all, even in the movies, suspects know enough to throw away their cell
phones so they won't be tracked. But the DC Circuit Court of Appeals is concerned about the DC police using cell phone surveillance technology to track down a suspect's location in ten without a warrant. The Fourth Amendment still exists, and the defendant says his constitutional rights were violated. Joining us.
As former federal prosecutor Robert Min's head of the white collar and government investigations practice at McCarter and English, Bob tell us a little bit about the facts of the case, sure with this case dealt with a defendant who was sitting in his car in northeast Washington and had with him his cell phone, a prepaid cell phone. He also had with him four stolen cell phones that he had taken from women whom he had sexually assaulted. The police
were trying to locate him. They used information from the telephone company to get his general location, but then in order to pinpoint exactly where where he was and they can arrest, they used something called a sting ray device, which is something that tricks a cell phone into believing
that it is a cell tower. And so when your cell phone emits information to locate a cell tower to make a phone call, the string array device sends a message back and allows the police to locate within a matter of feat exactly where your phone is at that particular point in time. So the court has been is considering this case and whether it was constitutional for the
police to use it. Had explain to us what legally how the court is looking at this question, sure, Michael, Well, the case really comes down to the question of whether or not the use of that stingray device without obtaining
a search warrant to the Fourth Amendment violation. And it turns on the question of whether there's a reasonable expectation of privacy as somebody has uh in simply carrying their cell phone around, and whether the police, when they use the sting ray device which tricks your phone into revealing its location whether that is essentially a search and requires police to go and get a warrant before using a
device like that. Bob Judge Phyllis Thompson said, it's difficult for me to see that he has a reasonable expectation of privacy because the defendant Jones was carrying stolen cell phones and there was an expectation that someone would try to find them or him. Do the stolen goods change the calculus, Well, they might. For that judge, there was
a three judge panel heard the argument. This is only the second Court of Appeals anywhere in the country that has heard argument on this sting ray device, and the fact of this case, frankly, are not particularly good for the defense because not only was the defendant carrying his personal cell phone, but he also was carrying cell phones
that he'd stolen from his victims. And so one of the things prosecutors have argued is that if the police were not able to locate him using his own personal cell phone, which raises his Fourth Amendment issue, they certainly would be able to locate him by tracking the victims phones because he had no privacy interests in the victims phones that he took after he assaulted these women, so that may complicate this case um as well as the fact that the defendant was on a public street as
opposed to being in a home where the expectation of privacy is also diminished. You know, when when we have wire taps and things on traditional phone lines, there's complicated statutory structures at the state and federal level about that, and we seem to be struggling with the same kinds of issues in the in the you know, internet and
cell phone era. Is this the kind of thing that really the courts should be dealing with or should this be something that is dealt with statutorially so that we can figure out what we really think about these complicated
privacy questions. Well, the privacy rights advocates who have jumped in on this case are making that very argument to say that it's really something that Congress should address because it's a situation where technology and privacy rights really come together in a way that has produced inconsistent rulings around the country, and they're arguing that this is something that Congress should look at because it turns on the very complicated question of when you turn on your cell phone,
do you by simply turning it on relinquish your privacy right? And is it fair for police without a warrant to turn your cell phone into what is essentially a tracking device. And that's something that privacy groups have said Congress ought to weigh in on so that there's a consistent position around the country and we don't have a patchwork of court cases around the country with inconsistent decisions. Bob, what about the cases that just involve cell phone towers. Are
police allowed to just use the cell phone towers to track? Well, police have use cell phone towers and in those cases courts have said that there is no expectation of privacy there because you're making a phone call and by actually making the call, you're relinquishing your your privacy right. So you know, you know that your phone is connecting with a cell phone tower, and therefore it's possible for somebody to use towers to locate your particular location. Here, there
was no call that was being made. It was this sting ray device that simply tricked the phone into giving away its location. And that's why it raises a slightly different legal question, Bob. There was a decision by an appellate court in Maryland. What did they say, Well, the Maryland Court came down on the side of the privacy groups and said that police ought to get a search warrant here. They said, there absolutely is a search that is conducted when somebody um uses a cell phone and
the police use this sting ray device. And I think one of the things that troubled the Maryland court is that a police have been using these stingray devices for years and been very secretive about it, and in fact have entered into agreements with the manufacturers of this device not to disclose that they are using these devices, and in some cases have gone so far as to dismiss cases rather than to disclose to the defense and the
courts that a stingray device was used. The Maryland courts found that troubling and probably was a factor in the court deciding that a Fourth Amendment search had taken place. Bob, that was the most surprising thing to me in this case, reading about how they've signed agreements with the FBI and device manufacturers to not disclose the existence to the public the courts or defense counsel. Is that legal, Well, it's legal if they ultimately decided to drop cases rather than
to disclose the information. But I can see why a court would find it troubling because those agreements, which included the FBI and device manufacturers, or agreements that said that they wouldn't disclose to the public, to the courts or to defense counsel that these devices were being used. And that's one of the reasons privacy advocates are very alarmed by the use of these devices and the agreements that law enforcement have entered into into in connection with these devices.
All right, well, we keep finding new ways that we're being tracked, and pretty soon, I don't think we're going to be surprised by these anymore. Thanks for joining us. That's from our federal prosecutor, Robert Menz. He's the head of the white collar and government Investigations practice at McCarter and English