We are not talking about the stingray found in the ocean. We are talking about a new, emerging piece of technology that can spy, record, and track people down via their cell phones. This new piece of technology is called the StingRay and its prominent use has been under wraps for almost two decades.1 Police have been using this spy tool and most often without a proper warrant or permission from supervising officers.2
As it stands today, sixty government agencies in twenty-three states now employ StingRay technology allowing police to grab cell phone data, text messages and more.3 Those states are Washington, California, Idaho, Arizona, Texas, Tennessee, Georgia, Florida, Louisiana, Delaware, Oklahoma, Michigan, Wisconsin, Illinois, Minnesota, North Carolina, Maryland, Pennsylvania, New York, Virginia and Massachusetts, Hawaii and Missouri.4
The way in which this portable, high tech scanning device works is that it, first, masquerades itself as a cell tower and is usually mounted in a police vehicle.5 Cell phones are constantly seeking the nearest cell tower even when you are not using it.6 Your phone could connect to the police StingRay when it is nearby and route data through the StingRay.7 The data is relayed to a connected laptop which displays and translates the data for the officers.8 The data is passed onto an actual cell tower and the phone’s user would not know the difference.9 Police can get the identification of the phone user, call records, voicemails, text messages, location of the connected phone, and much more.10 When a StingRay is used to track a suspect’s cell phone, they also gather information about the phones of countless bystanders who happen to be nearby even if they are not the target of surveillance.11 In essence, StingRays are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and other identifying information.
The use of these devices by government agencies is warrantless cell phone tracking as they have frequently been used without informing the court system or obtaining a warrant.12 The Fourth Amendment of the Constitution protects the public from warrantless searches.13 As such, the use of StingRays for warrantless cell phone searches should be held as unconstitutional. In Kyllo v. United States, the Supreme Court ruled that thermal imaging of Kyllo’s home constituted a search within the meaning of the Fourth Amendment.14 In this case, since the police did not have a warrant when they used the device, which was not commonly available to the public, the search was presumptively unreasonable and therefore unconstitutional.15 The majority opinion in this case argued that a person has an expectation of privacy in his or her home and therefore, the government cannot conduct unreasonable searches, even with technology that does not enter the home.16 Justice Scalia discussed how future technology can invade one’s right of privacy and therefore authored the opinion so that it protected against more sophisticated surveillance equipment.17 As a result, Justice Scalia asserted that the difference between “off the wall” surveillance and “through the wall” surveillance was non-existent because both methods physically intruded upon the privacy of the home.18
Here, the facts about the use and operation of StingRay technology is analogous to the use of thermal imaging. Justice Scalia warned the American people about more sophisticated, invasive technology of the future19, and here it is! StingRay devices. For the first time, a federal judge, Judge Pauley, puts everyone on notice about warrantless searches by actually kicking DEA StingRay evidence to the curb in court as he deemed them unconstitutional.20
At this point, it seems as though the only problem going forth, is that citizens who are subjected to the use of StingRay technology may have a difficult time defending their right to privacy and constitutional right against a warrantless search. The main reason is because most people are unaware of the mere existence of this new technology and, further, often unknowingly fall victim to the use of this “all-you-can-eat-data-buffet.” This is why the proper call to action would be for all police departments to abandon this technology as it is a direct violation of each American citizen’s right against unreasonable searches and an invasion of their privacy right. Although, it certainly is hard to rule something as unconstitutional if the case never reaches the Supreme Court. Our challenge, then becomes, how do we as American citizens protect our right against the invasion of privacy and unreasonable searches if we do not know our rights are being violated? The use of StingRays and they are so secretive and are deemed to be classified information by the FBI21 that, in moving forward, this will be an arduous task for the American people.