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]