By Michael Maharrey

Earlier this week, a bill that bans the use of “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations became law without the governor’s signature. The new statute not only protects privacy in New Hampshire, but will also hinder one aspect of the federal surveillance state.

A bipartisan coalition of representatives introduced House Bill 474 (HB474) earlier this year. The legislation will help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

HB474 prohibits warrantless use of stingrays both for location tracking and gathering data or information from a phone. The law does allow warrantless use of a stingray under a judicially-recognized exception to the warrant requirement.

The bill also includes provisions requiring police to limit collection of data or metadata to the person named in the warrant, and to immediately, permanently delete any information gathered on anyone not so-named. Police will also have to delete any data or meta-data relating to the person named in the court order within 30 days if there is no longer reason to believe the information is evidence of a crime.

On May 18, the Senate passed HB474 with a technical amendment on a voice vote. The House previously approved the measure in March. After the House concurred with the Senate amendment, it went to Gov. Chris Sununu’s desk for his consideration. Since he did not act on the legislation, it became law without his signature on July 11. It will go into effect next year.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of HB474 represents a major blow to the surveillance state and a win for privacy.

WHAT’S NEXT

HB474 goes into effect Jan. 1, 2018.