EFF, ACLU amicus brief advocates warrants, probable cause for cell-simulator use

Privacy and civil rights groups told a court that the use of cell-site simulators raise serious Fourth Amendment concerns.
Privacy and civil rights groups told a court that the use of cell-site simulators raise serious Fourth Amendment concerns.

The Electronic Frontier Foundation (EFF) joined forces with the American Civil Liberties Union (ACLU) and the ACLU of Maryland to file a amicus brief Tuesday with the Court of Special Appeals in Maryland in support of requiring warrants based on probable cause to use cell-site simulators like Hailstorm.

The brief was filed in a case where a judge has already tossed evidence that was obtained without a warrant through use of one of the simulators. When Baltimore Police used a Hailstorm cell-phone surveillance device to find Kerron Andrews, they “not only failed to get a warrant to use the device, they also failed to disclose it to the judge in their application for a pen register order,” the EFF's Jennifer Lynch wrote in a blog post. “And it appears they even failed to tell the State's attorney prosecuting Mr. Andrews' case.”

The use of the Hailstorm violated the Fourth Amendment, the brief contended, because it “is both invasive and precise,” masquerading as a wireless carrier's base station, communicating with all wireless devices in an area, transmitting “invisible, probing electronic signals that penetrate walls of  Fourth  Amendment-protected  locations,” and forcing “cell phones within those spaces to transmit  data to  the government that they  would  not  otherwise  reveal  to  the  government,  and  allow  agents to  determine  facts about  the  phone  and  its  location  that  would  not  otherwise  be  ascertainable  without physical entry.”

What's more, the brief said, “the devices  can  pinpoint  an  individual  with  extraordinary  precision,” and can “search the contents of people's phones” as well as “disrupt the  ability  of  phones  in  the  area  to  make  calls.”

Even with a warrant, the privacy advocates claimed, using the Baltimore Police's use of the Hailstorm device “would still raise serious Fourth Amendment concerns” in large part “due  to  the  dragnet  nature  of  the  device's surveillance  and  the  collateral  impacts  of  the  device's  broadcasts  on  innocent  third parties.”

Lynch pointed out in the blog post that based on reports in USA Today, “the Baltimore PD has been using cell-site simulators extensively (and secretly) for the last eight years. A detective testified that Baltimore officers had used cell-site simulators more than 4,300 times since 2007.”

In the amicus brief, the privacy and civil rights groups ask the court to “affirm the trial court's suppression ruling.”

Lynch urged the court to “agree that the warrantless use of a stingray is unconstitutional and uphold the lower court ruling suppressing the evidence.”

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