KingFish-ing for Info

A new police tracking device puts Fort Worth in the middle of a constitutional debate.
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Posted May 30, 2012 by ZACK SHLACHTER in News
Fakhoury: “The Fourth Amendment applies here.” Courtesy Electronic Frontier FoundationFakhoury: “The Fourth Amendment applies here.” Courtesy Electronic Frontier Foundation

In February, when the Fort Worth City Council considered the police department’s request to spend $184,000 on technology for tracking cell phone locations, approval was unanimous, without debate, and with only a few curious details revealed.

In a memo to the council, police officials promised to use the new system, called KingFish, “to establish probable cause” in criminal cases. Thing is, probable cause — that is, enough evidence to establish that there is probable cause to believe a crime has occurred is what a law enforcement agency usually needs first, to convince a judge to approve invasive measures such as home searches, arrests, wiretaps or, in some contexts, use of tracking technology against an individual.

Police did not return Fort Worth Weekly’s calls seeking information for this story.

However, a police spokesperson told the Fort Worth Star-Telegram that the department will use the new devices only with court approval. And some civil libertarians fear that devices like the KingFish could be used not only to track location but to gather content ­— that is, a wiretap.

The confusion is rather Orwellian, the result of the law trying to stay abreast of  technology and perhaps of a societal change in which terrorism fears and technology-heavy crime dramas on TV have lowered citizens’ outrage over invasive police practices.

In January, the U.S. Supreme Court ruled that police cannot place a GPS tracking monitor on a suspect’s car without a warrant. Civil rights advocates see that case, styled United States v. Antoine Jones, as indicating a sea change. In its wake, the FBI announced it had deactivated 3,000 GPS monitors.

“A number of judges started challenging [the use of warrantless tracking devices] and saying, ‘Wait a second, the Fourth Amendment applies here,’ ” said Hanni Fakhoury, an attorney with the Electronic Frontier Foundation in San Francisco. Similar legal challenges have been raised in cases before and since the Jones decision, Fakhoury said.

But the KingFish devices — of a type generally known as “stingrays” — work differently than usual GPS monitors. Made by the Harris Corporation of Florida, the devices act like dummy cell phone towers, so that a cell phone signal will ping off the device and make it unnecessary for police to get a court order to have the cell phone company release the information.

Under a 1986 federal law that controls some government information-gathering practices, “non-content” information like location requires less of a legal showing than, say, a wiretap.

So it’s possible that Fort Worth police could legally use the their new stingray devices without getting warrants. But it’s murky legal ground.

“The law has struggled to catch up to and handle the things that technology has made possible,” said Lisa Graybill, an Austin attorney with the ACLU of Texas.

Across the country, judges have begun reconsidering the use of technology to target wireless internet connections and gather location information from cell phone service providers and GPS monitors. Besides the Jones case, similar issues have been raised regarding the use of GPS tracking to nab suspected drug dealers in Oregon and Kentucky.

Gleaning location information without a warrant hasn’t been challenged in court definitively yet, although cases that could do that are making their way through the legal process.

In an ongoing Arizona case involving online identity theft, law enforcement tracked a suspect through the use of a stingray device that allowed officers to determine his location when he signed onto a wireless internet network from his laptop. In such cases, police agencies argue that an individual who has relinquished information to a third party, such as an internet provider or cell phone company, can no longer claim that that information is private. In the Arizona case, the U.S. Department of Justice conceded that the use of a stingray did constitute a search, but claimed the defendant had no right to privacy for other reasons.

Closer to home, a federal district judge in Houston refused to grant authorization to the Immigrations and Customs Enforcement officials seeking location information from cell phone providers. Judge Stephen William Smith ruled that ICE officials would have to provide the kind of probable-cause evidence needed for search warrants.

ICE appealed the ruling, and the case is now before the Fifth Circuit Court of Appeals. In March, Graybill, Fakhoury, and other civil rights advocates filed an amicus brief in support of Smith’s decision. Oral arguments have not been scheduled in the case.

The debate over the legal requirements for using the KingFish and other similar devices is likely to go on for some time. Legal scholars disagree about the import of the Jones ruling, and Fakhoury said it’s unlikely that federal privacy laws with regard to digital technology will be updated any time soon.

Lawyer and law professor Tom Goldstein of SCOTUSblog has written that the decision in the Jones case is confusing and that in some ways it may provide legal support for warrantless use of electronic  tracking devices.

Fakhoury said he shares Goldstein’s sense of caution but is more optimistic about the future of privacy rights in the digital age. The Jones decision, he said, “is both a victory and a step in the right direction.” And he noted that the courts have begun to re-examine a series of laws and legal doctrines established 30 to 40 years ago that have long since been outpaced by technology — and to reconsider their impact on the Fourth Amendment.

“People would say the Fourth Amendment has been eroded in the last 20 years,” Graybill agreed. Even if recent rulings have been ambiguous, she said, she believes a tide is turning. “They had an opportunity to but didn’t throw out completely Fourth Amendment rights” — and she and others see that as a win.

Zack Shlachter is Fort Worth-based freelance writer.


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