New Technology Is Not Exempt from the Fourth Amendment

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The Bill of Rights Defense Committee and Defending Dissent Foundation applaud the Department of Justice’s (DOJ) new guidelines that law enforcement agencies under its purview seek a warrant before deploying a Stringray device. However, it is not for DOJ to decide when they must first seek a warrant before conducting an intrusive search. That decision is left to our Bill of Rights, which prohibits such warrantless searches. The folly of allowing the government to pick and chose when it is convenient to follow the Bill of Rights is already on full display.

The DOJ guidelines do not apply to all federal law enforcement agencies and do not apply to any state or local law enforcement agencies. The DOJ guidelines begins with lofty language about the need to use technology in a way that is consistent with the Constitution and the Fourth Amendment. Yet, this language is misleading as the DOJ guidelines make clear that the warrant requirement is only a matter of “policy,” (i.e. not mandated by the Fourth Amendment) and the new policy is meant to “improve internal management.” In the past, DOJ has argued that Stringray use did not require warrants under the Fourth Amendment, as they constituted “pen registers.” Pen registers were ruled not to be a search by the Supreme Court thus opening the door to their warrantless use. Congress, however, under the Pen Register Act, mandated that law enforcement seek “court orders” before using them. These court orders, however, are not the same as warrants and do not require probable cause to be shown.

Even more detrimental to civil liberties the failure to get a court order under the Pen Register Act, unlike failure to get a warrant under the Fourth Amendment, does not call for the illegally obtained evidence to be excluded. DOJ is not retreating from this earlier position. It new guidelines calls the past use of court orders instead of warrants as having been done “appropriately.”  We do not believe this to be the case. The Defending Dissent Foundation believes that a warrant based on probable cause should always be sought before using a Stringray device. We do not believe this to be the case, because it will improve the internal management of government agencies or because it is a sound policy (though it is). We believe that law enforcement should seek a warrant, because this is what our Bill of Rights requires. This policy is undoubtedly an improvement over the previous situation, but not only does it not go far enough it also embraces a framework that does not adequately recognize the People’s Rights as embodied in the Fourth Amendment. All law enforcements agencies must enact policies requiring the seeking of a warrant before using a Stringray device. Such polices are the only policies in line with our Bill of Rights.

“Stringray” is the term given to secretive technology that simulates a cellphone tower. Stringrays work by tricking phones in the surrounding area that to believe the government’s device is a cell phone tower. This draws in not only the cellphone signal of the individual targeted for surveillance, but all cellphone users within its reach. Stringrays allow the government to gain information about the cellphone users, as well as track and locate them. According to the New York Times, “[t]he device is also capable of capturing calls, text messages, emails and other data” though the new DOJ guidelines bar this use. In the past, local law enforcement agencies have been extremely secretive about when and how they use Stringrays. The FBI even went so far as to ask local law enforcement to “agree to dismiss criminal prosecutions if the case had the potential to “risk compromising the secrecy of how stingrays are used.”