Illinois Bar Journal

March 2017Volume 105Number 3Page 22

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LawPulse

Lawsuit challenges warrantless cellphone tracking

A Chicago lawyer is suing the city and other defendants for gathering cellphone information in a way that violates individual privacy and should require a warrant.

Stingrays aren't found solely at sea. "Stingray" is also the nickname for cell site simulators. These devices mimic cell towers, collecting data from phones. Collected data can include text messages, browser history, phone call content, and an individual's location.

Illinois attorney and National Lawyers Guild volunteer legal observer Jerry Boyle has filed a lawsuit against the City of Chicago and other defendants arguing that using cell site simulators violates individual privacy and should require a warrant. Boyle's lawsuit claims that his cellphone information was intercepted at a Black Lives Matter protest on Martin Luther King Jr. Day in 2015. The lawsuit seeks class certification for others whose cellphone information was also intercepted by the Chicago Police Department (CPD).

According to the January 12, 2017 complaint, found at http://bit.ly/2ikKctI, cell site simulators can also track a phone user's cumulative movements, revealing location data over time. Boyle alleges that CPD engaged in secretive and widespread use of cell site simulators.

The complaint further alleges that CPD refused to disclose information about its use of site simulators until forced to do so via Freedom of Information Act lawsuits. That information revealed that CPD spent over a half million dollars on site simulator technology between 2005 and 2010. The complaint also alleges that CPD maintains no written policies, practices, or standards governing the use of site simulators. These site simulators are allegedly used without any warrants, or if so, only via broad "trap and trace" orders, which are not based on individualized probable cause.

Chicago attorney Melinda Power says that Boyle's lawsuit is, to her knowledge, the first of its kind filed in Illinois. While the case raises questions of law that are untested in Illinois, she believes that the use of site simulators at public demonstrations is a "clear violation of the First Amendment and the Fourth Amendment."

For their part, law enforcement officials say stingrays are important crime-fighting tools. "It's how we find killers," FBI Director James Comey said back in 2015. "It's how we find kidnappers. It's how we find drug dealers. It's how we find missing children. It's how we find pedophiles." See http://usat.ly/1LtSLdI.

But groups around the country have sued both state and federal law enforcement agencies recently seeking information related to the use of site simulators and seeking damages for their use. In May 2016, the New York Civil Liberties Union sued the New York Police Department alleging that its practice of using site simulators violated individual privacy rights. (Read a New York Post article about the case at http://nyp.st/1RbOsjS).

Targeting protesters

The Electronic Information Privacy Center sued the FBI to compel the release of documents related to federal law enforcement's use of the devices (for more, see http://bit.ly/1GgYEET). Power, who is an attorney at West Town Community Law Office, says the use of a site simulator should be the basis for invalidating an arrest or dismissing charges brought based on information obtained from its use. She says CPD uses the information obtained from site simulators to identify the organizers of protests. That information can later be used as a pretext to target leadership from those groups, she says.

Boyle's complaint alleges that CPD uses the data obtained from cell site simulators as the "moving force behind the violations of class members' constitutional rights." First, it alleges that by failing to have policies and procedures in place for the use of site simulators, CPD directly encourages the violation of the First and Fourth Amendment rights of the class members.

Second, it alleges that this conduct is part of a "decades-long history of targeting individuals and organizations for illegal surveillance because of their political activities." Further, the complaint specifically alleges that CPD began tracking demonstrators in August 2014, in the wake of the protests aimed at the protests born out of the shooting of Michael Brown in Ferguson, MO.

Power says that site simulators are more likely to be used at rallies where CPD expects or thinks violence will happen. For example, she says that while she doubts that the January 21, 2017 Women's March was targeted, she believes that Black Lives Matter protests and rallies opposing President Trump's policies are more likely candidates for such surveillance.

According to the ACLU, 22 states and the District of Columbia use the tracking technology (http://bit.ly/1OxKmWG). This creates a large potential for abuse. As the ACLU notes, local and state law enforcement have tried to conceal their use of the devices.

An August 2016 complaint filed with the Federal Communications Commission alleges that the use of Stingray devices unlawfully interferes with cellular communications, particularly within communities of people of color (see http://bit.ly/2cvCVFn). The ACLU's stance is that the use of site simulators should be curbed via strict oversight and transparency rules.


Matthew Hector
Matthew Hector is a senior associate at Woerthwein & Miller.

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