No, not the kind you find at the Aquarium.
For years, Baltimore police have been employing a device called a “stingray” which acts like a cell phone tower, “triggering all cell phones in an area to connect with it and determine where a particular phone is located.” There’s been such secrecy around the use of the devices that the agreement between the Baltimore police and prosecutors and the FBI called for extreme measures to avoid disclosure, including dropping charges when there was a risk the existence of stingrays might be exposed.
This week, in an opinion already being hailed as a landmark decision, the Court of Special Appeals of Maryland rejected the notion advanced by prosecutors that by having and using a cell phone, users give up their right to privacy as regards their location.
We conclude that people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement, and—recognizing that the Fourth Amendment protects people and not simply areas—that people have an objectively reasonable expectation of privacy in real-time cell phone location information. Thus, we hold that the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requisites of a warrant, unless an established exception to the warrant requirement applies.
The reaction to the court’s opinion was swift.
Dan Kobrin, an attorney with the public defender’s office who argued the case before the court, said the impact is “enormous” and “will hopefully curb abuse of this device and bring it out into the sunlight.” But he said it was unclear whether the ruling can be applied retroactively.
“The court’s opinion is a resounding defense of Fourth Amendment rights in the digital age,” added Nathan Freed Wessler, a staff attorney who specializes in technology and privacy with the American Civil Liberties Union. “The court’s withering rebuke of secret and warrantless use of invasive cell phone tracking technology shows why it is so important for these kinds of privacy invasions to be subjected to judicial review.
“Other courts will be able to look to this opinion as they address rampant use of cell site simulators by police departments across the country.”
Whether the case is pursued to the state’s highest court is a decision to be made by the Office of the Attorney General.
The Attorney General’s Office, which had argued that phone users voluntarily share their whereabouts and can opt out by turning their phone off, said it is reviewing the opinion and considering whether it will appeal to the state’s highest court.