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Constitutionality of Stingrays Debated in Texas

The use of fake cellphone towers by federal investigators to solve crimes is facing opposition from a Texas judge and the American Civil Liberties Union.

A Texas judge rejected federal requests to allow the warrantless use of cellphone tracking technologies. The two technologies in question, called “stingrays” and “cell tower dumps,” were rejected for use because the U.S. attorneys making the request seemed to not understand how the technology worked, the Wall Street Journal reported.

“Without such an understanding, they cannot appreciate the constitutional implications of their requests,” Magistrate Judge Brian Owsley wrote in an order. He added that the government was essentially asking him to allow “a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment.”

The request to use cell tower dumps and stingrays was a result of prosecutors trying to convict suspects in a drug trafficking case and another unspecified crime in which a suspect took a victim's cellphone. A cell tower dump allows enforcement to get information about all the phones connected to the tower at a given moment. A stingray is a device that emulates a cell tower, tricking cellphones and other devices into connecting to it and the stingray can then relay information, such as specific location, to law enforcement.

The American Civil Liberties Union (ACLU) has taken a firm stance against both technologies on the grounds that they are violations of Fourth Amendment rights and the technologies cast a wide net that includes innocent bystanders who should not be involved with the investigation.

“The government is hiding information about new surveillance technology not only from the public, but even from the courts,” ACLU Staff Attorney Linda Lye wrote. “By keeping courts in the dark about new technologies, the government is essentially seeking to write its own search warrants. That’s not how the Constitution works.”

A stingray device was used in an Arizona case last year to locate a broadband card that was implicated in a large tax-fraud scheme. The Justice Department reportedly said it got a warrant to use the device, but some contest exactly what should have been allowed by the warrant once it was unsealed. The warrant didn't order the device of a stingray, it merely requested that the cellphone service provider give “information, facilities and technical assistance” to the law enforcement officials looking for the card.

Some argued that if a device is not capturing the content of a call, then use of the device does not require a warrant, but these technologies are still new and there is little precedent for what the laws concerning them should be.