How hard should it be for cops to track you? Lawsuit revives the debate

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Privacy advocates sued a Florida police department Tuesday over a controversial surveillance technology that they say improperly lets authorities track the movements of thousands of cell phone users without a warrant.

The suit, filed by the American Civil Liberties Union, revives a perennial debate about the judicial standards that law enforcement officials must meet to gather geo-location information and, once they receive a court's permission, how much of that data they can collect and store. It also raises questions about decades-old privacy legislation written in the age of the telephone but liberally interpreted to allow much greater surveillance in the Internet era, according to the law's critics.

The ACLU alleges in the suit that Sarasota, Fla., law enforcement officials, acting on behalf of the U.S. Marshals Service, obtained judicial approval to use a surveillance tool known as a "stingray." The stingray equipment can help police identify which cell phones may be operating in an area by establishing a fake cell tower. Nearby devices then automatically try to connect with the stingray device, which logs the connections for forensic analysis, unbeknownst to the cell phone users.

Although the paperwork surrounding the court order is a public record, authorities then allegedly took steps to conceal their request for approval, as well as the judicial order authorizing the surveillance, according to the suit. An unnamed federal agency transferred the paperwork to another facility after the Sarasota Police Department, responding to a formal request, agreed to share the documents with the ACLU, according to the suit.

"Here we have the U.S. marshals swooping in and physically grabbing what turns out to be the only copy in existence of these orders and applications and spiriting them away," said ACLU staff attorney Nathan Wessler, "thus taking them outside the reach of anyone trying to use the state public-records law."

The U.S. Marshals Service declined to comment. The Sarasota Police Department said it had "a different opinion" than the ACLU, and that it was working with its attorneys on the matter.

Civil liberties groups have been active in seeking out court orders for stingrays -- especially those that don't force authorities to justify their request with a high burden of proof. The result, Mr. Wessler said, is that governments can collect location data on "hundreds of thousands of innocent people" simply by arguing before a judge that use of a stingray would be relevant to an ongoing criminal investigation.

"All kinds of things can be 'relevant,' "said Brian Owsley, a former U.S. magistrate judge for the Southern District of Texas. "It's a pretty low standard."

Law enforcement defenders argue that the operative words are "ongoing investigation," and layers of oversight in a well-functioning police department don't let officers launch frivolous investigations involving a stingray.

Geo-location data from stingrays has been used to exonerate suspects proved not to be at the scene of a crime and has even saved lives, said Ronald Hosko, a former head of the FBI's Washington field office.

"There's not this massive pool of data that the FBI is storing and storing and storing. We don't have that," Mr. Hosko said of his time in the agency. "We needed a predicated case to go start to collect. We didn't do that randomly; we needed a reason."


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