Thursday, January 4, 2018
Shawn Marie Boyne (Indiana University Robert H. McKinney School of Law) has posted StingRay Technology, the Exclusionary Rule, and the Future of Privacy: A Cautionary Tale on SSRN. Here is the abstract:
Sometime in 2017, smartphone ownership in the United States will exceed 222 million users which will be equivalent to a market penetration rate of over 85 percent. Although millions of individuals in the United States enjoy the convenience of using smartphones, it is likely that few of those citizens understand that government agencies have used those same phones to track the location of individuals in real time as well as to access the significant and previously private information stored on those devices without a warrant. The public’s general lack of awareness of the intrusiveness of current law enforcement surveillance is but one factor responsible for creating this knowledge gap. Another root of the gap however is that the judicial institutions that we entrust with protecting our rights cannot preemptively adjust constitutional doctrines to parallel technological change. Indeed, judicial institutions have typically adopted a cautious approach to adjusting constitutional doctrines to technological developments. For example, although Apple introduced the IPhone in January 2007, it took seven years for the Supreme Court to hold that government agents must obtain a warrant to search smartphones seized incident to arrest. This article argues that the widespread deployment of cell-site-simulator technology and its warrantless use by law enforcement agencies illustrates the weakness of our current structure of Fourth Amendment protections and that we cannot rely on the judicial branch to adequately protect individual privacy rights in an age of rapidly developing technology.
In Part I of this article, I highlight the evolution of the use of StingRay technology in criminal investigations in the United States and the efforts by privacy rights organizations to elevate the standard of judicial scrutiny of those devices. In Part II, I examine two ground-breaking 2016 court decisions in which courts for the first time suppressed evidence obtained through the use of cell-site simulator technology. While United States v. Lambis is the first instance where a federal court suppressed stingray-related evidence, the decision of the Maryland Court of Special Appeals in State of Maryland v. Andrews, is the first state appellate decision to uphold a trial court’s CSS-related suppression order. Finally in Part III, I argue that the history of the government’s use of CSS technology demonstrates that in a common law system restricted to litigating current cases and controversies, the judicial branch standing alone cannot adequately protect individual privacy rights.