Editorial: State police dragnet should be stopped
The Michigan State Police for a decade has had secretive cellphone tracking technology that was purchased with funds from the U.S. Department of Homeland Security and with the intent to help track down suspected terrorists.
But the Hailstorm and Stingray devices – which can collect GPS locations of any cellphones within range and, in some cases, collect data and other information transmitted – have also been used to fight everyday crimes, an investigation by the ACLU and The Detroit News found.
Access to enhanced, modern technology is an important tool for law enforcement, and useful in the case of imminent threats to public safety. But the availability of these technologies can’t trump the right of law-abiding citizens to privacy under the Fourth Amendment.
The Michigan State Police wouldn’t discuss details of how or when the technology is used, and Michigan currently has no law that specifically governs the use by law enforcement of these technologies. Because of non-disclosure agreements Michigan and other police departments have signed with the defense contractor, few details are available about the extent to which this technology collects information.
That’s a problem.
The devices, such as the Hailstorm, appear to conduct general, dragnet searches on all nearby cellphones, collecting location information and phone call logs. Some simulate cell towers, tricking cellphones into connecting to them and directly sharing transmitted user data. And the devices don’t leave a trace, meaning police abuse and warrantless eavesdropping can occur unnoticed.
The state police says it obtains warrants and court orders before deploying the technology, except in “exigent circumstances.”
Unfortunately, under established U.S. Supreme Court precedent, police use of the devices without a warrant is likely protected. The so-called “third-party doctrine” maintains that citizens effectively waive their 4th Amendment protections when they share their information with a third party, such as a wireless provider. These devices bypass wireless companies altogether and intercept cellphone usage from citizens in as much as a mile radius.
As Justice Sonya Sotomayor wrote in a recent case before the U.S. Supreme Court, U.S. v. Jones, which involved warrantless use of a GPS tracker on a suspect’s car, it’s necessary to rethink digital privacy protections in the modern age of communication.
“This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” she said.
The Fourth Amendment – and understood right to privacy – is rooted in preventing general searches of the public, regardless of whether people are suspected of a crime, actions the British Crown undertook during the American Revolution that the founders sought to end. Today, third-party doctrine has eroded this constitutional protection and allowed police to use technology against the broader public without a warrant.
Short of the U.S. Supreme Court curtailing third-party doctrine, the state Legislature ought to act to protect its citizens’ Fourth Amendment rights.
Certainly, these technologies have merit in fighting crime, but civil rights can’t be sacrificed in the name of expediency or convenience.