The courts establish a floor that privacy protections cannot fall below, but legislators are free to raise that floor on their own initiative, and there has been some progress on that front.
At the federal level, Rep. Jason Chaffetz (R-UT) has introduced a bill that would make the use of a stingray without a warrant a criminal offence, except in some limited exigent circumstances. The Stingray Protection Act goes well beyond merely suppressing tainted evidence. It would impose criminal liability, up to 10 years’ imprisonment, for anyone who improperly deploys a stingray device.66 The bill has an arduous path to becoming law, but clearly demonstrates that years of press and court revelations have put stingray abuse squarely on the agenda of some legislators.
Additionally, several states have taken steps to curb warrantless stingray use. The California state legislature recently passed a bill imposing a warrant requirement on state and local stingray use in California,67 while states such as New York and Missouri are considering similar legislation.68
These efforts affirm the traditional constitutional responsibility of state governments for law enforcement. State legislatures have the power to correct many of the problems raised by secretive stingray use, whether through forbidding state and local law enforcement to participate in federal militarization or transfer programs or imposing strict requirements on the use of surveillance devices.
Technological advancements in law enforcement are inevitable. The government’s ability to surreptitiously monitor the private communications of Americans will develop as quickly as the means of communications themselves. In that sense, it is likely a fool’s errand to argue for an outright ban on police use of cell‐simulator technology. It’s possible to imagine a legitimate role for this technology in law enforcement’s arsenal. But the efforts at secrecy, the lack of accountability, and the twisted incentives created by federal meddling in state and local law enforcement beg for reform.
At the executive level, federal and state agencies should be forthright and transparent in their possession and use of stingray surveillance devices, both with the relevant courts and the general public. Even if one accepts the argument that extreme secrecy produced an advantage for law enforcement over terrorists and drug cartels, that advantage has long since evaporated as criminal syndicates have altered their methods and the veil of secrecy has been stripped from the technology.
The FBI should disavow any suggestion that hiding evidence from judges or defendants is a condition of stingray acquisition. It should also cease pressuring prosecutors to drop cases in order to protect the existence and capabilities of cell‐site simulators.
At the judicial level, Fourth Amendment jurisprudence governing the privacy protections of cell phone data is in desperate need of Supreme Court analysis. Lower courts seem confused about which analytical framework to apply to stingray cases and how the technology should be assessed within those frameworks. Courts at all levels should reject state secrecy arguments that deny judges and defense teams access to information about stingray capabilities and usage.
State legislative bodies should be wary of federal encroachment into a role traditionally occupied by state and local governments. The use of federal security grants to equip state and local law enforcement, the use of federal nondisclosure agreements to hide the behavior of state and local agents from judicial and legislative oversight, and the inevitable twisting of law enforcement priorities that accompanies such incentive programs are all reasons for caution in allowing agencies to participate in these federal programs. Legislatures should require law enforcement agencies to publish stingray policies that detail the circumstances under which stingray use is authorized, to publish data retention guidelines, and to resolve to seek a warrant or a probable cause analogue before deploying stingrays.
Stingray surveillance raises many novel political and legal issues, yet cell phone trackers are only the vanguard. Police technology will continue to become more expansive and powerful, and the longer it takes legislatures and courts to produce a legal framework capable of keeping up with technology and ensuring that constitutional rights are protected, the more threatening the surveillance state will become.
1. The gun turned out to be a BB gun, but for purposes of armed robbery statutes it is treated as a firearm.
2. Ellen Nakashima, “Secrecy around Police Surveillance Equipment Proves a Case’s Undoing,” Washington Post, February 22, 2015,
3. The term “stingray” is often used as an umbrella term to refer to an entire family of cell phone surveillance devices that may go by other trade names, such as “KingFish,” “HailStorm,” or “Loggerhead.”
4. American Civil Liberties Union, “Stingray Tracking Devices: Who’s Got Them?” ACLU.org.,
5. American Civil Liberties Union, “War Comes Home: The Excessive Militarization of American Policing,” ACLU.org, June 2014,
https://www.aclu.org/sites/default/files/assets/jus14-warcomeshome-report-web-rel1.pdf, p. 26.
6. Kim Zetter, “U.S. Marshals Seize Cops’ Spying Records to Keep Them from the ACLU,” Wired, June 3, 2014,
7. Kim Zetter, “Emails Show Feds Asking Florida Cops to Deceive Judges,” Wired, June 19, 2014,
8. U.S. Const. amend. IV.
9. See Katz v. United States, 389 U.S. 347 (1967).
10. See Smith v. Maryland, 442 U.S. 735 (1979).
11. 18 U.S.C. 3123 describes the relevant legal standards for use of pen registers or trap and trace devices.
12. For more detail on the technical capabilities of Stingray devices, see Stephanie K. Pell and Christopher Soghoian, “Your Secret Stingray’s No Secret Anymore: The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy,” Harvard Journal of Law & Technology 28, no. 1 (Fall 2014): 8–19; see also, Sam Biddle, “Long‐Secret Stingray Manuals Detail How Police Can Spy on Phones,” The Intercept, September 12, 2016,
13. For instance, if law enforcement is using the stingray to monitor a demonstration in which no individual is suspected of any wrongdoing sufficient to justify a pen register, a stingray would allow law enforcement to learn the identity and phone information of the attendees, which could be used to facilitate further surveillance.
14. United States v. Rigmaiden, 844 F. Supp.2d 982, 996 (D. Ariz. 2012).
15. Department of Justice Electronic Surveillance Manual (Jan. 2, 2008), p. 17.
16. “Department of Justice Policy Guidance: Use of Cell‐Site Simulator Technology,” United States Department of Justice, Office of Public Affairs,
17. Including the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Department of Homeland Security (DHS); the Federal Bureau of Investigation (FBI); and the U.S. Marshals Service, but excluding agencies under the Department of Homeland Security, such as the U.S. Immigration and Customs Enforcement (ICE), the U.S. Secret Service, and the Transportation Security Administration (TSA).
18. FBI response to Freedom of Information request by Electronic Privacy Information Center, February 2013,
19. Nicky Woolf and William Green, “IRS Possessed Stingray Cellphone Surveillance Gear, Documents Reveal,” Guardian (London), October 26, 2015,
20. American Civil Liberties Union, “Stingray Tracking Devices: Who’s Got Them?”
21. Nathan Freed Wessler, “Documents Suggest Maker of Controversial Surveillance Tool Misled the FCC,” American Civil Liberties Union, September 17, 2014,
22. Federal Communications Commission, “Grant of Equipment Authorization to Harris Corporation,” March 2, 2012. “(1) The marketing and sale of these devices shall be limited to federal, state, local public safety and law enforcement officials only; and (2) State and local law enforcement agencies must advance coordinate with the FBI the acquisition and use of the equipment authorized under this authorization.”
23. A point of clarity: in the New York court system, a supreme court is not the highest court. That distinction belongs to the New York State Court of Appeals.
24. New York Civil Liberties Union v. Erie County Sheriff’s Office, State of New York Supreme Court, Index No. 2014/000206, March 17, 2015,
25. Agreement between FBI and Scott R. Patronik, Chief of Erie County Sheriff’s Office, June 29, 2012,
27. Ellen Nakashima, “FBI Clarifies Rules on Secretive Cellphone‐Tracking Devices,” Washington Post, May 14, 2015,
28. FCC letter to Phil Mocek of MuckRock News, October 2, 2014,
https://www.muckrock.com/news/archives/2014/oct/08/fcc-fbi-cant-agree-stingray-nda/. “We do not require that state and local law enforcement agencies have to complete one or more non‐disclosure agreements with the Federal Bureau of Investigation prior to acquisition and/or use of the authorized equipment.”
29. See Testimony of Elana Tyrangiel, Principal Deputy Assistant Attorney General at the Department of Justice and Seth M. Stodder of the Department of Homeland Security before House Subcommittee on Interior, October 21, 2015.
30. The concern is explicitly mentioned in the nondisclosure agreement itself, which states that disclosure would empower surveillance targets to “employ countermeasures to avoid detection.” Supra, note 24.
31. The efficacy of programs such as the Urban Areas Security Initiative (UASI) has been called into question by efficiency hawks such as former Senator Tom Coburn (R-OK), who paints a damning portrait of the program’s waste. See Tom Coburn, “Safety at Any Price: Assessing the Impact of Homeland Security Spending in U.S. Cities,” December 2012,
32. Nathan Freed Wessler, “Police Citing ‘Terrorism’ to Buy Stingrays Used Only for Ordinary Crimes,” American Civil Liberties Union, October 23, 2015,
33. Privacy SOS, “Police Are Using a Powerful Surveillance Tool to Fight the War on Drugs, Not Terrorism,” October 15, 2014,
34. Justin Fenton, “Baltimore Police Used Secret Technology to Track Cellphones in Thousands of Cases,” Baltimore Sun, April 9, 2015,
35. See the master list of stingray deployments by the Tallahassee Police Department, March 27, 2014, Fusion,
36. American Civil Liberties Union, “War Comes Home: The Excessive Militarization of American Policing,” ACLU, June 2014,
https://www.aclu.org/report/war-comes-home-excessive-militarization-american-police, p. 26.
37. See John Mueller, “Is There Still a Terrorist Threat? The Myth of the Omnipresent Enemy,” Foreign Affairs, September/October 2006,
38. See Pell and Soghoian, “Your Secret Stingray’s No Secret Anymore.”
39. Joel Handley et al., “Inside the Chicago Police Department’s Secret Budget,” Chicago Reader, September 29, 2016,
40. Even when the funding sources are local, as in the case of civil forfeiture funds, the agencies still must coordinate their acquisition and use of stingray equipment with the federal government.
41. Robert Patrick, “Controversial Secret Phone Tracker Figured in Dropped St. Louis Case,” St. Louis Post‐Dispatch, April 19, 2015,
http://www.stltoday.com/news/local/crime-and-courts/controversial-secret-phone-tracker-figured-in-dropped-st-louis-case/article_fbb82630-aa7f-5200-b221-a7f90252b2d0.html; Ellen Nakashima, “Secrecy around Police Surveillance Equipment Proves a Case’s Undoing,” Washington Post, February 22, 2015,
https://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html; and Justin Fenton, “Baltimore Police Used Secret Technology to Track Cellphones in Thousands of Cases,” Baltimore Sun, April 9, 2015,
42. Clifton Adcock, “Okla. Authorities Have or Use Controversial Cellphone Tracker,” Oklahoma Watch, April 10, 2016,
43. “Approved Non‐Disclosure Notice,” from the FBI to the Oklahoma City Police Department, August 7, 2014,
44. Or, less charitably, “evidence laundering.” In an email response to the revelations, ACLU Staff Attorney Nathan Wessler stated: “This is the first time I have seen language this explicit in an FBI non‐disclosure agreement. The typical non‐disclosure agreements order local police to hide information from courts and defense attorneys, which is bad enough, but this goes the outrageous extra step of ordering police to actually engage in evidence laundering. Instead of just hiding the surveillance, the FBI is mandating manufacture of a whole new chain of evidence to throw defense attorneys and judges off the scent. As a result, defendants are denied their right to challenge potentially unconstitutional surveillance and courts are deprived of an opportunity to curb law enforcement abuses.” See Jenna McLaughlin, “
FBI Told Cops to Recreate Evidence from Secret Cell-Phone Trackers,” The Intercept, May 5, 2016,
45. See Testimony of Seth M. Stodder, Assistant Secretary, Threat Prevention and Security Policy, Office of Policy, U.S. Department of Homeland Security, testifying before the Committee on Oversight and Government Reform, Subcommittee on Information Technology, October 21, 2015. See also Testimony of Elana Tyrangiel, Principal Deputy Assistant Attorney General Before the Subcommittee on Information Technology, Committee on Oversight and Government Reform, U. S. House of Representatives, October 21, 2015.
46. Katz v. United States, 389 U.S. 347 (1967).
47. United States v. Miller, 425 U.S. 435 (1976).
48. Smith v. Maryland, 442 U.S. 735 (1979).
49. Kyllo v. United States, 533 U.S. 27 (2001).
50. United States v. Jones, 132 S. Ct. 945 (2012).
51. United States v. Jones, 132 S. Ct. 945 (2012).
52. Riley v. California, 573 U.S. ___ (2014) at 8.
53. Hodai v. The City of Tucson, Superior Court of the State of Arizona, No. C20141225, City’s verified answer, p. 2, par. 10.
54. Ibid., p. 4.
55. Ibid., p. 5.
56. Justin Fenton, “Legal Challenge Alleges Authorities Withheld Police Use of Stingray Surveillance,” Baltimore Sun, September 4, 2015,
57. C. Justin Brown and Kasha M. Lee, “StingRay Devices Usher in a New Fourth Amendment Battleground,” The Champion, National Association of Criminal Defense Lawyers, June 2015, p. 13.
58. Kim Zetter, “Emails Show Feds Asking Florida Cops to Deceive Judges.”
59. As former U.S. Magistrate Judge Brian Owsley explains, pen/trap applications using such vague terminology can deceive judges into believing they are authorizing traditional pen registers or trap and trace devices, when in fact law enforcement plans to use the authorization to deploy much more invasive cell‐site simulators. See Larry Greenemeier, “What Is the Big Secret Surrounding Stingray Surveillance?” Scientific American, June 25, 2015,
60. Brown and Lee, “StingRay Devices Usher in a New Fourth Amendment Battleground,” pp. 12–20.
61. United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Arizona 2012).
62. United States v. Graham, 846 F. Supp. 4d 284 (D. Md. 2012).
63. State of Maryland v. Andrews (2015). Court of Special Appeals of Maryland, No. 1496, Sept. Term 2015. Filed March 30, 2016.
64. Ibid., at p. 25.
65. Riley v. California, 573 U.S. ___ (2014) at concurrence p. 6.
66. Nicky Woolf, “Congressman Introduces Bill to End Warrantless Stingray Surveillance,” Guardian (London), Nov. 4, 2015,
67. Cyrus Farivar, ““California Cops, Want to Use a Stingray? Get a Warrant, Governor Says,” Ars Technica, Oct. 8, 2015,
68. Mike Maharrey, “Missouri Bill Would Ban Warrantless Use of Stingray Devices, Hinder Federal Surveillance Program,” Tenth Amendment Center, December 18, 2015,