This article was originally posted on Tenth Amendment Center.
In 2017, the Virginia legislature will consider two bills that would not only protect privacy in Virginia, but also hinder at least two aspects of the federal surveillance state.
Del. L. Mark Dudenhefer (R-Garrisonville) introduced House Bill 1332 (HB1332) last January, and Sen. J. Chapman Petersen (D-Fairfax) introduced a companion bill (SB599) in the Senate. The Virginia Electronic Communications Privacy Act was carried over to the 2017 session in both chambers.
The legislation would 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.
The bill would require police to obtain a warrant or judicially issued wiretap order before deploying a stingray device, unless they have the owner’s explicit permission.
Similar to legislation passed in California last year, HB1332 and SB599 would also bar law enforcement agencies from compelling third party communication companies to release mobile device information without a warrant or wiretap order. This would include actual communication content such as phone conversations, text messages and email, location information and other metadata such as identifying information.
The bill does include an exception to the warrant requirement pursuant to an emergency involving danger of death or serious physical injury to a person. Even then, law enforcement agencies must get a court order authorizing retention of the data within three days or they must destroy all information gathered.
Provisions in HB1332 and SB599 would severely limit sharing of any legally obtained data.
The legislation provides a legal remedy for anybody whose data is obtained in violation of the law.
“Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the United States Constitution, Constitution of Virginia, or of this Chapter.”
During the last session, the House Committee on Commerce and Labor passed HB1332 by a voice vote. It was then referred to the Committee on Science and Technology. That committee voted to carry the legislation over to the 2017 session.
The Senate version passed the Committee on Commerce and Labor by a 15-0 vote, then cleared the General Laws and Technology Committee 12-0. SB599 then moved to the Courts of Justice Committee, which voted 15-0 to carry the bill over to the 2017 session.
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 last fall, 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 databases. 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. This represents a major blow to the surveillance state and a win for privacy.
By allowing defendants to suppress information obtained in violation of the law, HB1332 would effectively stop one practical effect of NSA spying in Virginia.
Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.
In other words, not only does the NSA collect and store this data, using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.
This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.