While new technologies—the Internet, cell phones, email, Facebook, twitter, blogs—help people communicate and fight the state by shedding light on the state’s practices, the state will of course also try, where it can, to use technology to oppress. As reported in a recent Wall Street Journal article, Stingray phone tracker fueling constitutional clash (discussed in a recent episode of Tech News Today), the feds are using a “little known cellphone-tracking device—a stingray”—to track the the location of cell phone users, even when the phone is not in use. As the WSJ piece explains:

A stingray works by mimicking a cellphone tower, getting a phone to connect to it and measuring signals from the phone. It lets the stingray operator “ping,” or send a signal to, a phone and locate it as long as it is powered on, according to documents reviewed by the Journal. The device has various uses, including helping police locate suspects and aiding search-and-rescue teams in finding people lost in remote areas or buried in rubble after an accident.

Other devices, such as GPS devices secretly installed in suspects’ cars, are also used. A looming constitutional question is whether these tactics violate the Fourth Amendment, which prohibits certain searches and seizures unless a search warrant is first obtained.

As it stands now, the state agencies employing the Stingray and GPS surveillance tactics claim that only a court order is needed, not a search warrant; court orders are easier to obtain than a warrant, which requires a showing of probable cause. They argue that tracking location in this manner is more like the use of “pen registers,” which only require a court order, and not a warrant. “Pen registers gather signals from phones, such as phone numbers dialed, but don’t receive the content of the communications.” The state is also resisting divulging how it used this technology in recent cases, considering its location-tracking techniques to be “Law Enforcement Sensitive, since its public release could harm law enforcement efforts by compromising future use of the equipment.” “Law Enforcement Sensitive.” Gotta love that phrase. How about Individual Rights Sensitive?

The Supreme Court, on Nov. 8, “will hear arguments over whether or not police need a warrant before secretly installing a GPS device on a suspect’s car and tracking him for an extended period.” The basic question will be: Is tracking someone’s location more like intercepting a conversation, which requires a warrant; or more like a pen-register, which only records what numbers were dialed from the phone. It may be a close call how the Court will rule, but as the article notes:

with cellphones, data sent includes location information, making the situation more complicated because some judges have found that location information is more intrusive than details about phone numbers dialed. Some courts have required a slightly higher standard for location information, but not a warrant, while others have held that a search warrant is necessary.

Here’s hoping the Supremes rule in the people’s favor. But I wouldn’t bet on it.

Update: See Mike Masnick’s excellent Techdirt post, Details Emerging On Stingray Technology, Allowing Feds To Locate People By Pretending To Be Cell Towers.

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