Following the wake of the NSA leaks, the legality of the surveillance techniques of local and federal agencies throughout the United States have been questioned. Tracking of Americans has emerged as one of the most controversial areas of domestic surveillance. This essay will seek to analyze the arguments of the legality and illegality of these programs through the examination of the Federal license plate tracking program and the regional use of Stingray Surveillance.
Stingray Surveillance
The Stingray Surveillance device allows the holder to track the location of a mobile phone by simulating a cell-tower. This simulation causes cell phones in the region to connect to the Stingray device and to transmit their information, such as phone numbers, unique electronic serial numbers, and phone and messaging logs, to the database of the Stingray.[1]
This technology is used throughout the United States by federal and local/state agencies. In particular, the perceived unchecked use of the device by local police has prompted the greatest backlash. The American Civil Liberties Union (ACLU) has taken the lead in opposition against the technology after requesting information from various Florida departments on the use of Stingray devices and the policies surrounding that use.[2] The secrecy of the technology has prompted many questions about the legality of the Stingray device. One of the main focuses of critics is that police departments frequently do not obtain a warrants or submit court filings before using the technology.[3] This is problematic because it contrasts the policies required for obtaining information from an actual cell-tower. A cell-tower will provide an approximate location (rather than the exact location produced with Stingray) and a warrant is required to obtain this lesser information on the phones from the companies controlling the cell-tower information.[4] In the instances that a warrant was obtained prior to the use of Stingray, critics argue that the wording of the warrant is too vague and does not provide judges with a full description of the information-collection procedures. Further complications emerge during the use of Stingray as the cell-phones of innocent persons in the area will also be recorded by the device.
License Plate Readers
A second case of concern in the United States is the use of License Plate Readers by the Drug Enforcement Administration. According to a report by the Wall Street Journal, “The primary goal of the license-plate tracking program, run by the Drug Enforcement Administration, is to seize cars, cash and other assets to combat drug trafficking.”[5] However, concerns have emerged as the program begins to grow. The massive database created by the DEA through their use of License Plate Readers is now being used by local and federal authorities handling cases outside of Southwest border-states and unrelated to DEA investigations, though access to the database is still controlled by the El Paso Intelligence Center (EPIC).[6] The lack of transparency into the program, has prompted criticism, as it is unclear whether the program is regulated by a court or by a set policy.[7]
These examples are two of many new surveillance-based information gathering procedures used by federal, state, and local authorities. While these new procedures may be efficient in apprehending criminals, the secrecy surrounding many of these practices has called their legality into question. Controversy emerges over the application of the Fourth Amendment to newer forms of technology, such as computers or cellular phones. The United States’ common law tradition relies on precedent and interpretation of society, however, this has left a distortion between defined constitutional rights and real-world practices. The law has not evolved quickly enough to the introduction of new technology. In order to rectify this problem, there must establishment of clear regulations and/or legislation governing these new procedures.
[1] [1] Nakashima, Ellen. "Secrecy around police surveillance equipment proves a case’s undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22 Feb. 2015. <http://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>.
[2] "Florida police used warrantless 'Stingray' surveillance over 1,800 times." RT America. RT, 24 Feb. 2015. Web. 24 Feb. 2015. <http://rt.com/usa/234875-aclu-florida-police-surveillance/>.
[3] Ibid.
[4] Nakashima, Ellen. "Secrecy around police surveillance equipment proves a case’s undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22 Feb. 2015.
[5] Barrett, Devlin. "U.S. Spies on Millions of Drivers." The Wall Street Journal. The Wall Street Journal, 26 Jan. 2015. Web. 22 Feb. 2015. <http://www.wsj.com/articles/u-s-spies-on-millions-of-cars-1422314779>.
[6] Ibid.
[7] Lewis, Renee. "DEA program capable of tracking movements of millions, ACLU says." Aljazeera America. Aljazeera, 27 Jan. 2015. Web. 22 Feb. 2015. <http://america.aljazeera.com/articles/2015/1/27/license-plates-spying.html>.