For First Time Federal Judge Tosses Evidence Based On Stingray

A Federal judge in New York tossed evidence in a drug bust based on the use of a Stingray cell site simulator,  But the devil is in the details.  To be clear, this is not about getting a warrant to use a Stingray and catching a drug dealer.  This is about lying to or omitting key facts from a Federal judge when asking that judge to sign a warrant.

For those of you who read my blog, you know that I have written about Stingray cell site simulators several times.  Those devices Hoover up huge quantities of cell phone and text message traffic and then the agency that collected it is free to go through that data – not just to find that one bad guy, but also so go on a fishing expedition to see what else might be there.  And, they get to keep all that data for as long as they want.

So what happened in New York?

The Feds were looking for a possible drug deal that was going to move large quantities of drugs from South America.  As part of their investigation, they received a wiretap warrant to monitor traffic between two suspected drug traffickers.  Curiously, the traffic that they were going to monitor was done on Blackberrys.  Until recently, we thought that Blackberrys were secure.  Then we found out that Blackberry was secretly intercepting Blackberry traffic without the hassle of pesky warrants and handing that over to anyone who asked (law enforcement agencies only, we assume).

Then the DEA asked for a warrant to get location information for the phone.  What they told the judge was that they were going to ask the cell provider for that information.  So far, so good.

They did, in fact, get that information from the provider, but that only told them that the phone in question was in the area of Broadway and 177th Street in Manhattan.

So what did the DEA do?  They decided, on their own and absent a judge’s approval – which I can guarantee 99% would have been granted – to use a Stingray to get better location information.

Using the Stingray, they located the building and then the apartment where that phone was likely located.  The agents then knocked on the door and the suspect’s father let them in and consented to a search.

Ultimately, they found a kilo of coke and eight cell phones.  Certainly, not a massive amount of drugs, but also, just as certainly, not a personal use amount.

In the past, some courts have ruled that with any data that you give to a third party (such as Microsoft, Google or your cell phone carrier), you revoke your right to privacy because you gave that information to someone else.  In some cases, lawyers have used that third party theory to justify using a Stingray.

This judge, however, said, that Stingrays are different.  This is not data that you gave to anyone.  Since there is no third party involved (Like Google or Verizon), the third party doctrine does not apply.

The government has not said whether they will appeal the case or not.  Historically, the government has kept a pretty low profile on Stingray cases, even to the extent of dismissing charges rather than explain to a judge what a Stingray does, so it is unclear if they will open their kimono this time.

And this case is not even about drugs.  It is about following the law and not hiding from the courts and the public what, exactly, law enforcement officials are doing.

Curiously, the week after this guy was arrested, the Department of Justice changed their own rules and said, yes, we will ask for a warrant before we use a Stingray.  That decision doesn’t affect this case, however.

However this case ends and whatever happens to this drug dealer, this is another example of the changing rules on using Stingrays as judges begin to read the news and understand what they are, because, it seems, they are not getting that information from prosecutors.

Stay tuned for more details.

Information for this post came from Ars Technica.

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