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Did Feds' Use of Fake Cell Tower Constitute a Search? 191

Posted by timothy
from the law-review-editors-salivate dept.
hessian writes with this story in Wired: "Federal authorities used a fake Verizon cellphone tower to zero in on a suspect's wireless card, and say they were perfectly within their rights to do so, even without a warrant. But the feds don't seem to want that legal logic challenged in court by the alleged identity thief they nabbed using the spoofing device, known generically as a stingray. So the government is telling a court for the first time that spoofing a legitimate wireless tower in order to conduct surveillance could be considered a search under the Fourth Amendment in this particular case, and that its use was legal, thanks to a court order and warrant that investigators used to get similar location data from Verizon's own towers."
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Did Feds' Use of Fake Cell Tower Constitute a Search?

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  • by Anonymous Coward on Saturday November 05, 2011 @12:38PM (#37958682)

    As they are intercepting communications, it is unquestionably a wiretap.

    Whether the courts are still legitimate enough to declare that remains to be seen.

    • Re: (Score:3, Insightful)

      by Gunfighter (1944)

      Whether the courts are still legitimate enough to declare that remains to be seen.

      You have a lot more faith in the government to do the right thing than I do.

      • by HalAtWork (926717) on Saturday November 05, 2011 @01:57PM (#37959368)

        You have a lot more faith in the government to do the right thing than I do.

        You're supposed to be able to have faith in the government to do the right thing. That's what they're supposed to do. That's why we have them. If they don't act accordingly, that's when you know there's a serious problem that needs to be addressed. So how do we reform the government is the issue we should be looking at instead of firing off quips.

        • So how do we reform the government is the issue we should be looking...

          That's the entire point of a democratic government. And since the founding of America, we have been debating how best our government should represent us for over 200 years now. So I agree with Gunfighter. I don't have faith in our government because I don't have faith in my fellow citizens at large. Individually, we are smart. Collectively, we're a bunch of fucking morons. But at least our founding fathers knew this and broke up the dele

    • by alphacharliezero (2469428) on Saturday November 05, 2011 @01:11PM (#37958988)
      'Stingray's do not intercept communication. That's why they get around the wiretapping warrant requirements. They are designed to spoof the carrier's tower in order to ascertain only the location of a mobile device. So I don't see wiretapping as the issue. What IS troubling however is the fact that once law enforcement has found the suspect/device they as a rule WIPE THE DATA from the stingray. They've been doing this supposedly to prevent defendants/criminals learning how they were caught. The issue is that a judge signs a court order approving the use of the Stingray. Then after gathering evidence, law enforcement DESTROYS that evidence instead of handing it over to the court for review. All this to prevent the defendant from getting it during discovery. That practice will likely stop soon since it's motive was to keep the device itself a secret. Now that it's use is public knowledge, there's no reason to continue the charade...
      • by Nidi62 (1525137)

        What IS troubling however is the fact that once law enforcement has found the suspect/device they as a rule WIPE THE DATA from the stingray. They've been doing this supposedly to prevent defendants/criminals learning how they were caught. The issue is that a judge signs a court order approving the use of the Stingray. Then after gathering evidence, law enforcement DESTROYS that evidence instead of handing it over to the court for review. All this to prevent the defendant from getting it during discovery.

        On the other hand, if they are deleting that data, they are also deleting any other extraneous cell phone location data they may have gathered in the process.

        • Bingo. But while it addresses, it also raises my biggest concern about this. In TFS they had a warrant to obtain location data through the cellular network, and while it's grey area as to whether that warrant extends to the use of a device like the Stingray, the device itself doesn't have enough finesse to only trick the hardware you're trying to locate. It'll trick any hardware on the same network that's within range, including potentially hundreds of innocent bystanders, all of whose information would be

      • by fluffy99 (870997)

        No. They wipe the data so they can claim no data was recorded or actively monitored, therefore no wiretapping was performed.

        The scary part is that they have the capability to handle calls while doing this spoofing. Which for all intents is the equivalent of them snipping your landline and running it through a black box, then afterwards wiping the blackbox and claiming it doesn't constitute a wiretap. Problem is that the original wiretap really was a guy hanging on the pole with a testset clipped onto your

      • by fluffy99 (870997)

        They pretend to be a tower and re-route all call info from nearby devices through the box, relaying the calls over to an actual cell tower. That's worse than a wiretap as it's intercepting everything in the area. Wiretap used to mean tapping into a specific line. This is full blown re-routing of all calls including those which were not within the scope of the search warrant.

      • That's a great airtight defense you have there.

        May be, you should just build yourself a fake FedEx drop off box or a fake UPS drop off box and place it just in front of a police station. The only thing you'd do would be to record all the routing information stored on the *outside* of those envelopes. That wouldn't count as intercepting their mail right, since you wouldn't actually open their envelopes, and you'd put them in a real drop off box as soon as possible to avoid being discovered.

        I'm sure the cops

    • After Citizen's United vs. FEC, I completely lost my faith in the court's ability to interpret the spirit of our Constitution...very little would surprise me at this point, to be honest.
      • by khallow (566160)

        After Citizen's United vs. FEC, I completely lost my faith in the court's ability to interpret the spirit of our Constitution...

        Nonsense. Looks like a straightforward application of the First Amendment to me.

        • It can't be a straightforward application of the First Amendment, because corporations are not people and do not have "rights".

          I am aware the the Supreme Court has ruled that corporations are legally people, but that flies in the face of around 200 years of law that up until then said otherwise. That decision merely shows how messed up today's Supreme Court is.

          If you -- or the courts -- actually think corporations have all the legal rights of people, then why aren't they allowed to vote? Or marry?

          F
          • by khallow (566160)

            It can't be a straightforward application of the First Amendment, because corporations are not people and do not have "rights".

            This is a non sequitur. The conclusion doesn't follow from the premise.

            • I think you have them backward. The premise is that corporations are not people and do not have rights. The conclusion is that since they do not have rights, they cannot therefore assert their "first amendment rights", which for them do not exist.
          • by muridae (966931)
            Citizens United did not suddenly give corporations the right to run political ads. They had the right to do that before the ruling. All CU challenged was a law that said corporations could not run ads sponsoring a specific candidate withing X days of an election. The courts found that the law acknowledged corporations had a right to free speech every time except withing X days of an election, and told Congress that you can't have it both ways. The law was found to be unconstitutional. Congress could go back
            • "The courts found that the law acknowledged corporations had a right to free speech every time except withing X days of an election, and told Congress that you can't have it both ways."

              Apparently my point went completely over your head. The issue I raised is whether corporations are actually people, and therefore have "rights" at all. If they do, then the First Amendment applies. But if they do not, then the First Amendment cannot apply.

              As you say: Congress could legislate what corporations may or may not do. But those aren't rights, those are legal privileges. Congress does not have the Constitutional authority to either grant or take away rights, without first amending the Constituti

      • by schwit1 (797399)

        Citizen's United vs. FEC is a simple 1st amendment issue. If you are looking to lose faith in the SCOTUS look no further than than the Kelo decision.

        • by khallow (566160) on Saturday November 05, 2011 @01:48PM (#37959286)
          I agree. That's a very alarming ruling. It's worth noting that in the wake of Kelo vs. City of New London, 34 states added laws to address to some degree the abuses allowed by this ruling. The US is fortunately that there were means to mostly compensate for a bad court ruling in this case. But in rulings on federal power, states cannot correct for bad court decisions.
    • by Wrath0fb0b (302444) on Saturday November 05, 2011 @01:24PM (#37959086)

      a court order and warrant that investigators used to get similar location data from Verizonâ(TM)s own towers.

      I'm really surprised again by Wired. The government got a warrant -- the same level of scrutiny they need to search your house or haul your ass to a concrete room. What more can they do to conduct a lawful investigation? The purpose of the warrant requirement is to make sure that probable cause is evaluated by a neutral and detached magistrate, not to bar all searches and make it impossible to catch identity thieves.

      I'm firmly for electronic privacy but I think it's patently absurd to say there should be a higher standard for getting cell-phone data than physically entering a person's home or arresting him.

      • by khallow (566160) on Saturday November 05, 2011 @01:51PM (#37959304)
        The problem is that the fake wireless tower appears to be outside the scope of the warrant. Keep in mind that judges do not issue blank checks when they write out a warrant. Doing something that's not in the scope of the warrant is just as illegal as if the warrant didn't exist at all.
        • The problem is that the fake wireless tower appears to be outside the scope of the warrant. Keep in mind that judges do not issue blank checks when they write out a warrant. Doing something that's not in the scope of the warrant is just as illegal as if the warrant didn't exist at all.

          No disagreement to the last sentence but I think "you can get location information from Verizon's network" and "you can spoof Verizon's network to get location information" are indistinguishable both as to the "thing being searched" (the suspect's location) and "method of searching" (by using the suspect's cell phone signal).

          So if Wired's point is that maybe the Feds did something that pushes the scope of the warrant, OK -- my impression from TFA was that they were against the use of spoofed cellphone tower

    • hmm... I wonder if Apple's FindMyiPhone feature could be considered an illegal search and a violation of the 4th A. rights of the iPhone thief
      • No, because you're not the government.
        • So... its not possible for a private citizen to violate another's civil rights? Or is this just that part of the 4th Amendment that only applies to the government?
          • For example, if a thief breaks into your house and moves the contents of a safe onto the street, they have committed larceny but not violated your 4th amendment rights (nor have the cops when they riffle through those documents which are now in a public location).

          • Basically, no, you can't violate someone's rights if you're just a private citizen. You can only perform a tortious action. And the tort will be resolved by the courts.
      • hmm... I wonder if Apple's FindMyiPhone feature could be considered an illegal search and a violation of the 4th A. rights of the iPhone thief

        If the government did it, possibly. You aren't subject to Fourth Amendment provisions. It may be one of the reasons that police departments don't necessarily go running after stolen phones / laptops when the owner 'finds' them in someone else's hands.

      • by fluffy99 (870997)

        hmm... I wonder if Apple's FindMyiPhone feature could be considered an illegal search and a violation of the 4th A. rights of the iPhone thief

        Probably not as it's tracking your property. Some of the laptop recovery programs that take screenshoots or webcam pictures could cause privacy issues though. What happens if the thief was a 12-yr old boy who took your laptop and the Prey Project software ends up snapping a picture of him in his underwear? Does that become child porn?

  • Fed in the Middle? (Score:4, Interesting)

    by Anonymous Coward on Saturday November 05, 2011 @12:39PM (#37958696)

    Are man in the middle attacks legal?

  • by Anonymous Coward

    and they said it was backed with a court order, no different than any other wiretap.

    One issue could be that they were also getting traffic from thousands of other callers not involved in the case. But, I suppose they could argue that happens in a standard wiretap as well, but it's the phone company that does the winnowing out.

    • by dougmc (70836)

      But wiretaps (and search warrants in general) are supposed to be specific in what they're searching for.

      If the warrant was specific about searching Verizon towers, then this fake tower would not count being as it wasn't a Verizon tower. Not that I've read the warrants or anything -- this is just a guess about a possible problem.

      Still, if the police had a warrant, and it covered what they did -- then it sounds like they did it right.

      • by silas_moeckel (234313) <silas@nOspAM.dsminc-corp.com> on Saturday November 05, 2011 @01:30PM (#37959136) Homepage

        IF they have a warrant for a targeted wiretap why not go to verizon??? This device exists so they can avoid having to get warrants all the paperwork etc that verizon might require. The FCC should come down on them hard unless for impersonating a cell tower they did not have the rights to use those frequencies. It sounds like they are trying to use there few legit cases to justify them having and using these devices.

        How long before the real criminals figure out how to use encrypted voip? I already have this on my phone connecting me to the office pbx.

        • by houghi (78078)

          IF they have a warrant for a targeted wiretap why not go to verizon?

          Because they believe they can dictate the law without the need to follow it.

          Or to say it in another way: because they can.
          Many nerds like to do things just because they can. Build something that already exists out of Lego is an example. This might be their way of nerd-ness.

          When I look at it from a technical point of view, it is kind of neat. From a legal point of view, it obviously is very, very, very bad.

    • by sjames (1099)

      They stipulated that in this one case they would call it a search for the purposes of not disclosing any technical information about the technology. They also made sure to retain the right to argue that it's not a search in any other court hearing.

      In other words, they have declared their intent to use the device without a warrant.

      For this particular case, they will argue that a warrant is more or less carte blanche even though they're supposed to be quite specific.

  • Good... BUSTED!

  • Just tag everybody as terrorists and have the now immune phone companies do the tapping.

  • I see opportunity (Score:2, Interesting)

    by chill (34294)

    I can see the potential for a smartphone app that learns the cell tower IDs that you normally connect to and lets you know if something is out of the ordinary. Similar to the Certificate Patrol add-on for Firefox, but for cellular connections.

    Wigle Wifi already collects the data and shows details on the towers visible to your phone, so that info *is* available.

    • by wkk2 (808881)

      How about an app that beeps and turns the display red if encryption, as feeble as it is, gets turned off.

    • It wouldn't work, because someone could just spoof the cell tower's ID, with a stronger (but closer) signal. In fact, I think that's what they do.
      • by chill (34294)

        I'll have to dig. I don't think they spoof the specific ID, but rather just appear as an authorized tower. This goes on with the cooperation of the cell companies.

        An approved tower would be easier to manage and have less if a possibility of a screw up than a spoofed tower.

  • by Doc Ruby (173196) on Saturday November 05, 2011 @01:36PM (#37959184) Homepage Journal

    It's obvious the government is lying about what it's doing so it can violate our privacy rights. The purpose of a judge is to be a reasonable human who can see that the government is lying, and stop the government. Judges who don't see through these lies are obviously either stupid, corrupt or both.

    We need a Constitutional Amendment that simply says

    The right of the people to be secure in their persons, houses, papers, and effects is a right to privacy.

    Because over the years stupidity and corruption have allowed the Fourth Amendment [cornell.edu] to fail to protect our privacy, when that is the right it instructs the government to protect:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Even stupid and corrupt judges, to say nothing of stupid and corrupt congressmembers and police, will have a harder time using the government to damage our rights instead of protecting them.

    • by zippthorne (748122) on Saturday November 05, 2011 @02:14PM (#37959488) Journal

      Your wording does no better. Indeed the problem is that once you start down the road of trying to form the perfectly worded genie wish, you've already lost. English isn't a programming language, and concepts are broader than can be expressed likewise anyway.

      Even with your privacy wording, the sentence will be twisted to mean something absurd, in part because the courts love making absurd rulings, presumably as a motivator to legislatures to play the genie wish game with progressively more wordy and less understandable documents. I suppose we'll always need lawyers, but at the same time, the existence of lawyers only exacerbates the problem, not only by breeding complacency by partially alleviating the issue through careful research, but also by arguing the very absurd interpretations that are sometimes accepted by the courts!

      • by Doc Ruby (173196)

        Why is my wording no better? The current precedents that allow privacy violations "because there's no right to privacy in the Constitution" would be useless when the court hears "Amendment 30 says quite clearly that the court must protect the privacy right, in this case in their papers and effects". That makes damaging privacy much harder, without those precedents.

        What you're arguing is that no amendment or law wording can possibly protect us. While we have a corrupt system, it is not nearly as corrupt as t

    • The original wording of the 4A was thought to be pretty damned clear, too. Judges who want to let the police do anything they like will find a way to corrupt your language, and a large part of the public will support them.
      • by Doc Ruby (173196)

        It was thought so, but it has proven not to be. Proven by actions in courts. Counteractions have their own countereffects. The countereffect is to make it harder.

        Your willingness to give up and say there is nothing we can do in the system to protect our rights is equally as important as the support from the large part of the public you're saying means we're doomed.

        • I'm not giving up - but I can recognize when I'm fighting a battle that curiously few of my fellow citizens want to fight.
  • A Search (Score:4, Insightful)

    by Renraku (518261) on Saturday November 05, 2011 @02:24PM (#37959566) Homepage

    It isn't what we traditionally think of as a search, but it should, at the least, be considered a warrantless wiretap. Basically, anything that intercepts communication data is a wiretap. Be it listening in to their handheld radios or putting a recording device on their phone line or otherwise doing the fandango with data from their cell phone. All forms of wiretapping.

    This would be just the same as them setting up an overpowering fake cordless phone base station and using it to listen in to their phone calls, and then arguing that it doesn't constitute wiretapping because they didn't have to go through the phone company to do it. No, sorry feds, you can't argue for spirit of the law in one case and then turn around and say that only the letter of the law matters in another case.

    The whole point behind needing a warrant to wiretap is that people should be secure in their homes and have a reasonable expectation to privacy. You can't just go about using technical means to violate that spirit of the law, while your other arm turns around and arrests someone for 'inciting riots' because they posted in support of Occupy Wall Street.

  • by redelm (54142) on Saturday November 05, 2011 @03:01PM (#37959858) Homepage
    Nevermind the moribund notion of entrapment or the diluted notion of wiretap, stingray is simply unauthorized access to a computer. Cracking.

    The phone is a computer which is being accessed and tricked into doing things the owner does not authorize. You might call this a search, but it is not because it is made without announcement, ala sneak'n'peek. Wiping the logs is excellent evidence of the perps (Feds) guilt.

  • we had a good run (Score:3, Insightful)

    by Trax3001BBS (2368736) on Saturday November 05, 2011 @03:16PM (#37959950) Homepage Journal

    FTA:
    "As such, the government has maintained that the device is the equivalent of devices designed to
    capture routing and header data on e-mail and other internet communications, and therefore does not
    require a search warrant."

    LOL so we should all have cell phone jammers, the equivalent of a door.

    Folks we had a good run, it's over. Everything now however illegal is being justified
    "National security". Former Minnesota Gov. Jesse Ventura has had enough, being blocked
    with that iron door to his lawsuit.
    http://news.yahoo.com/ventura-miffed-court-says-hes-off-mexico-174718110.html [yahoo.com]

    I watch the local TV broadcast and commercials of "see something, say something"
    and think of the tales taught me about the Nazi's and how neighbors told on neighbors
    till nobody trusted anyone. Godwin's law does not apply, this was taught me in school
    and how Hitler came to power; through old reel to reel's of "You are there"'s
    by Walter Cronkite.

    Of course building a cell phone tower to capture a persons cell info is illegal.
    That it's even questioned is a red flag.

  • ..appropriate FCC authorization and permits to run a bogus cell tower?

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