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Court says cellphone 'traps' are 4th Amendment searches

updated 03:40 pm EST, Sun November 6, 2011

Government admits search to keep secrets

The US government late this week made a concession on constitutional law in a fraud case that could set a precedent protecting access to cellphones. In an affidavit (PDF), the FBI was willing to say that the use of a stingray, or fake cellular tower used to intercept and relay data from phones, represented a legal Fourth Amendment search and seizure in investigating identity theft allegations against the suspect, David Rigmaiden. Officials decided to use a court order as proof on legal grounds to avoid having to abide by a request from Rigmaiden to learn details of how a stingray worked to mount his defense on constitutional violation grounds.

Investigators had so far only been willing to acknowledge that the stingray scraped basic header and routing information, which they used to help physically locate the Verizon cellular data card Rigmaiden had been using to get online away from his home access. The request, they argued, could have provided "sensitive" details of how their systems work to the broader public.

The prosecution went so far as to suggest it would rather forego the case than divulge the information.

In making the claims, the government insisted that, as a general rule, stingrays didn't violate the Fourth Amendment and didn't require a warrant. Cellphone owners didn't have a "reasonable expectation of privacy" as the information was being passed along to Verizon, prosecutors said. Civil liberty advocates have objected to such claims, arguing that it's still intercepting information that cellphone owners didn't intend to go public. Although the FBI and other agencies are legally required to purge any unrelated data they get from a stingray, concerns also exist that the public nature of a stingray means they get access to everyone who connects to that tower.

It's unclear whether the decision could stand as a legal precedent. If it does, however, it could prevent the government from trying a similar intercept without a warrant. [via Wired]



By Electronista Staff
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  1. sdp4462

    Fresh-Faced Recruit

    Joined: Mar 2009

    +8

    Ugh, prosecutors...

    So the government "spoofs" a cell tower (I'd love to know how this works, btw), and then when the paying subscriber thinks that they are connected to their tower, they access data that is then routed through a tower which appears to be that of they provider that they pay to allow access to voice and web services... now the prosecution wants people to believe that subversion is quite ok... unreal. I hope these prosecutors are simply making these arguments because it is required of them, not because they actually believe their own fallacious arguments.

  1. I-ku-u

    Fresh-Faced Recruit

    Joined: Aug 2011

    +7

    Misleading attribution

    The affidavit only describes the relevant legal properties of the stingray. The concession, according to Wired, happened during the arguments within the courtroom, and was based on circumstances particular to this case, which include search warrants granted for tracking purposes. The issue then is whether those warrants cover the use of the stingray, and the affidavit is used to justify that position.

    Also, a concession of a legal point is *NOT* the same as a court decision.

    Unless there are other sources which explain the discrepancy between Wired's article and this one, I suggest that this article's author needs to learn to read (or write) more carefully.

  1. testudo

    Forum Regular

    Joined: Aug 2001

    +1

    Re: ugh

    So the government "spoofs" a cell tower (I'd love to know how this works, btw),

    Easy. Put up a cell tower. Receive signals. Transfer all signals to a real tower while looking for specific cell traffic for the person in question.

    It isn't much different than spoofing a wifi base station.

    and then when the paying subscriber thinks that they are connected to their tower, they access data that is then routed through a tower which appears to be that of they provider that they pay to allow access to voice and web services... now the prosecution wants people to believe that subversion is quite ok... unreal.

    Um, where did you get the idea that prosecutors ever thought subversion wasn't OK? They do it all the time (have you not heard of stings, undercover operatives, etc?)

  1. testudo

    Forum Regular

    Joined: Aug 2001

    +1

    the argument

    Well, the way I read this, all that is being stated is that prosecutors originally claimed that their device was not a 'search' that would be covered by the fourth amendment. In their current defense, they are now saying it would be (or could be), but it doesn't matter, since they also claim it is covered by the warrant they already had.

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