As surprising as it may sound, the U.S. Constitution does not contain an express right to privacy. To remedy this scary fact, the Bill of Rights was born out of the need to establish boundaries upon which government could not infringe without certain explicit procedures. From an historical perspective, the Constitutional Framers were interested in protecting privacy of persons and possessions, specifically related to unreasonable searches and seizures (the Fourth Amendment), the privilege against self-incrimination (the Fifth Amendment), and a general protection of privacy (the Ninth Amendment). Today, surveillance devices are chipping away at our privacy, largely without any disclosure to us and in a form that cannot be sensed or observed.
Cellphone tracking technology devices known as StingRay have been identified to be in use by 48 government agencies in 20 states and Washington DC; however, agencies have kept the purchases and use of this technology secret, making it difficult to know the full extent its use. Stingrays are cell phone surveillance devices, which are also known as “cell site simulators” or “IMSI catchers” according to the ACLU’s website. “They function by replicating cell phone signal towers, sending signals to trick cell phones in their proximity into transmitting their identifying information, including locations.” Perhaps the most frustrating and disturbing aspect of this technology is the fact that the StingRay gathers and stores information about bystanders who happen to cross its path, despite the fact they are not viewed as “suspects” in the eyes of law enforcement.
The Times’ Perspective
The New York Times reports that law enforcement officials are required to sign a nondisclosure agreement “preventing them [law enforcement officials] from saying almost anything about the technology.” Furthermore, the F.B.I. claims that criminals and terrorists could bypass the system should law enforcement make disclosures regarding their use. Alas – privacy concerns. Folks in the legal world are not too thrilled about the confidentiality of government behavior, albeit for good reason. The Times article cites a privacy law professor, Orin S. Kerr, from George Washington University who states, “It might be a totally legitimate business interest, or maybe they’re trying to keep people from realizing there are bigger privacy problems.” Kerr goes on to say, “What’s the secret that they are trying to hide?”
An Interesting Twist in New York
In a recent ruling, a New York Judge ordered the Erie County Sheriff’s Office to publicly release information about the use of its StingRay cell phone surveillance equipment. The New York Supreme Court ordered the Sheriff’s Office to hand over documents. The lawsuit developed as a Freedom of Information Law request filed on behalf of the New York Civil Liberties Union.
The ruling will force the office to uncover exactly how frequently the StingRay is used, if search warrants are secured before the searches are conducted, and the extent of the department’s policies – particularly how data is collected and stored. At a time in our nation’s history where privacy rights are diminishing, especially after whistleblower events revealed the widespread practices of the NSA, this ruling is a shimmer of hope for preserving transparency between government and citizens.
If you have been arrested, or are facing criminal charges, do not hesitate to contact George Hildebrandt, Attorney at Law. I will help you navigate the ever-changing criminal justice system and exercise your Constitutional rights, including your rights to privacy.