Last week the Las Vegas Journal reported that someone is tapping cell phones in Sin City using a device hidden somewhere near South Point hotel casino, and there were 20 more found in cities across the country. While no one knows just who is behind these hidden devices (known as ISMI catchers, stingrays or GSM interceptors), they can be used to track a cell phone user's location and movement and may be used to intercept a call. While such technology would certainly be helpful to thieves and hackers, many believe the federal government and/or law enforcement may be covertly utilizing the devices as a means to gather evidence.
But can they do that?
The Fourth Amendment to the Constitution protects Americans from unreasonable search and seizure. More recently, the U.S. Supreme Court in Katz v. US demonstrated that this amendment protects people, and that it is reasonable for individuals to maintain an expectation of privacy.
However, the Supreme Court has not yet addressed whether the right to privacy is violated when the government tracks our movement without the support of a warrant. SCOTUS came close to doing so in 2012 when it found that the placement of a GPS tracker on a suspect's vehicle violated his 4th Amendment rights. The United States v. Jones resulted in this unanimous decision, but the justices differed in their reasoning.
Justice Antonin Scalia wrote the majority (5-to-4) opinion that the act of putting a tracker on a vehicle is an illegal violation and therefore the Court did not have to address whether such surveillance without physically trespassing violates the Constitution, and that that part of the issue could wait.
Well, the wait may be over.
The use of stingrays is bound to make its way through the court system to the Supreme Court. All it will take is one conviction by virtue of evidence obtained through a stingray for court standing to emerge. Under the law, a suit cannot be brought before the court until the complainant can assert that he or she has suffered damages as a result. Those damages give a person standing to sue - and this may explain why law enforcement officials in Florida have avoided any reference to the stingrays in their warrant applications. For now they are stating that information has come from a "confidential source." If that source is a suspect's own cell phone, which is being traced through stingrays, the suspect would have standing in front of a Supreme Court that seems ready to finish the job it began in asserting displeasure with this kind of privacy violating surveillance in the case of U.S. v. Jones.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
