Are Texas Judges the Last Protection of Privacy Rights? Southern District Denials of Federal Prosecutors’ Requests for Sneaky Cell Phone Data Gathering With Stingrays, Cell Tower Dumps
Down in Corpus Christi, there’s a federal judge who has been aware of technology’s threat to privacy rights for a long while now: he’s the Honorable Brian L. Owsley, U.S. Magistrate for the United States District Court for the Southern District of Texas.
Back in 2007, for example, Judge Owsley made the national news when he denied a motion filed by the Drug Enforcement Administration (DEA) which requested court approval to grab information off of an alleged drug trafficker’s cell phone via the phone company’s tracking system. Owsley said no. Why? The DEA, in his opinion, didn’t have facts that this guy really was a drug trafficker – the motion presented to the federal judge connecting this man to drug trafficking had only “conclusions by the agency.”
2012 Denial of U.S. Attorney Requests for Court Orders Allowing Cell Phone Dumps and Stingrays by Magistrate Owsley
That was five years ago. This month, Judge Owsley is in the national spotlight again for once again refusing to rubber stamp requests by federal investigators to use technology as a means of spying on people. Spying, as it collecting information about that person without their awareness, knowledge, or consent. Seems that federal prosecutors once again came before the Magistrate and asked for court orders which would allow them to use gizmos to gather info that might end up as evidence in a criminal prosecution.
No to the Stingray
This time, instead of the basic GPS cell phone request of 2007, things were fancier: the U.S. Attorney was arguing for federal agency use of “stingrays” and “cell tower dumps.” Judge Owsley once again said nope. His reasoning? The DEA wanted to use a “stingray” device and the U.S. Attorney asked the judge to okay it; he ruled against it (read the opinion here) because he found that the stingray equipment is not covered by federal statutes that allow some kinds of electronic surveillance (e.g., the pen register statute).
The stingray (aka triggerfish, cell site simulator, or digital analyzer) is a gizmo that you can carry around with you and it will pick up everything that is going on with a particular cell phone. It will grab that phone’s cell number as well as its serial number and all the numbers that are called using that phone. (For more details on the device, check out this 2005 opinion from Magistrate Stephen Smith also of the Southern District but presiding over a Houston Division court.)
No to the Cell Tower Dumps
Regarding the cell tower dumps of data, he found that the lawyers couldn’t give him sufficient explanation about how this stuff worked and what all it could do; and, no one gave the judge details on exactly what they were wanting to get through the use of this stuff. They attached no affidavit, for example, to detail the situation and demonstrate probable cause as is required by Rule 41 of the Federal Rules of Criminal Procedure.
Judge Owsley wrote regarding the cell phone tower dump of data (read the opinion here)(emphasis added):
Moreover, it is problematic that neither the assistant United States Attorney nor the special agent truly understood the technology involved in the requested applications. … Without such an understanding,they cannot appreciate the constitutional implications of their requests. They are essentially asking for a warrant in support of a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment. … There is nothing from the Government in its four applications to support the position that the “specific and articulable facts” standard and 2703(d) apply to cell tower dumps. Finally, there is no discussion about what the Government intends to do with all of the data related to innocent people who are not the target of the criminal investigation. …. This failure to address the privacy rights for the Fourth Amendment concerns of these innocent subscribers whose information will be compromised as a request of the cell tower dump is another factor warranting the denial of the application.
Why Are Federal Prosecutors Asking for Court Order Approval Instead of a Search Warrant?
Notice that in each of these situations, the federal prosecutors are going to federal magistrates and asking them for a court order okaying their antics instead of following what we all consider to be standard constitutional procedure of GETTING A SEARCH WARRANT. Why? Once they have the court order, then they’re good to go … and filing a motion doesn’t mandate that they do things like complete an affidavit filled with facts that are sworn to before a notary public as support for what they are doing (probable cause). As Judge Smith wrote in the above-linked opinion:
Denial of the government’s request for prospective cell site data in this instance should have no dire consequences for law enforcement. This type of surveillance is unquestionably available upon a traditional probable cause showing under Rule 41. On the other hand, permitting surreptitious conversion of a cell phone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected. Cf. United States Telecom Ass’n v. FCC, 227 F.3d 450, 464 (D.C.Cir.2000) (citing with approval an FCC finding that providing law enforcement with triangulation capability from cell site towers “poses difficulties that could undermine individual privacy”). Absent any sign that Congress has squarely addressed and resolved those concerns in favor of law enforcement, the far more prudent course is to avoid an interpretation which risks a constitutional collision.
It’s because of strong judges like Judge Owlrey and Judge Smith that the federal investigators didn’t get to run willy-nilly over lots of privacy rights. Here’s the next question: are all the federal judges just as steel-spined?
Here’s an interesting aside to all this: Grits for Breakfast reports that Judge Smith spoke on this problem in a speech he called “Standing Up for Mr. Nesbitt.” This refers to a classic skit by Monte Python (“How Not to be Seen”) which you can watch on YouTube — and it speaks volumes about what we’re really dealing with here.
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