Balance the Public Interest and Privacy of Location

One of the tools that law enforcement uses to locate individuals is a fake cell-tower that makes cellphones to announce their presence. One popular model of these cell tower simulators is called the Stingray. From a Stingray’s roster of cellphone’s telephone number and their associated International Mobile Equipment Identification (IMEI) numbers, police can determine whether a targeted cellphone is nearby. At best that can give police an approximate location. It’s better than no information at all.

The US Department Justice (DOJ) has decided that its law enforcement agencies (e.g., FBI, ATF, DEA or US Marshalls) must get a warrant before obtaining cellphone location information from a carrier or from a cell tower simulator. The DOJ set out exemptions from obtaining a warrant such as the need to protect human life, prevent the destruction of evidence, continue hot pursuit of a fleeing felon, or arrest a convicted fugitive from justice. The DOJ also set out limits on how much cellular use data and how long location data can be retained. The DOJ’s rulings do not apply to state and local law enforcement, since they have their own regulations on the use of cell tower simulators.

Suppose for the moment that law enforcement has Stingrays located in the most advantageous sites near a person of interest. It just takes a little forethought for the person to thwart that technical array and still use conventional phone numbers. People can sidestep Stingrays’ monitoring of cellphone radio frequency bands by using landline phones, including pay phones. Or they can use voice-over-Internet protocol or text or email, provided it is carried over a public Wi-Fi. A privacy-obsessed person could even ride cellular frequencies and use a succession of “burner” cellphones, thereby hiding behind phone numbers and IMEIs that are still unknown to law enforcement. More archaic portable electronic communication such as CB radios or walkie-talkies could work, but they are susceptible to radio frequency tracking.

When law enforcement’s conduct of electronic surveillance comes up for discussion, many become squeamish about the potential for privacy abuse. Indeed, privacy advocates reflexively portray the person of interest as a beleaguered innocent trying desperately to preserve his dignity and privacy. Standard practice for privacy advocates is to avoid mention of the crimes committed by the perpetrator or suspect. They talk exclusively and exhaustively of the perp’s right to privacy. If you allow them to lead the conversation, the billowing privacy fog will occlude all evidence of guilt.

Privacy rights are important, but they are seldom the sole topic and often they are of secondary importance to the public. For example, most of us would regard it as ludicrous to dwell on the privacy rights of a kidnapper holding a hostage. Of course, the kidnapper’s attorney will follow legal training and argue in the formulaic way – if the law doesn’t favor you, argue the facts; if the facts don’t favor you, argue the law. For the focused advocate, it’s not about truth and it’s not about the public interest – it’s only about promoting the cause.

Except in bizarre or corrupt instances, law enforcement has neither the time nor budget to chase model citizens. Any court issuing cell-location warrants should move expeditiously and give emphasis to protecting the public – not just to the privacy concerns of one individual.

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