Care to give the cops your cellphone?

State legislation aims to regulate surveillance

By Mark Fitton
Illinois News Network

SPRINGFIELD — State lawmakers are moving to put some boundaries on police surveillance technology that can literally snatch the data from a person’s cell phone even if the person and phone aren’t the target of an investigation.

The devices mimic a carrier’s cell tower. So, while a user believes his or her signal is moving through normal channels, it’s actually being intercepted and is moving through the hands of police.

Those signals can give access to a wireless device’s unique identifiers, thereby opening up the features and data.

The exact capabilities of the so-called cell site simulators or “stingray” technology are closely held by makers for proprietary business reasons.

Law enforcement also is mum about the technology, partly so as not to reveal their capabilities and practices and partly because of non-disclosure agreements with makers.  

However, depending how complex (and expensive) the device being used, the capabilities can include interception and storage of calls, texting data and browser data.

The technology, which is portable and can be deployed from a vehicle or aircraft, can also deny service, lock phones, block calls, and drain phone batteries, according to several sources, including the American Civil Liberties Union.

“The operator can actually employ or plant a bug or malware on your phone that (allows) the person who plants it to totally control the phone,” said Ed Yohnka of the ACLU of Illinois.

By their nature, the stingray devices generally don’t grab identifying information from a single phone, but from a targeted area. That means passersby can be subjected to surveillance and have their information gathered and stored.

State Rep. Ann Williams, D-Chicago, is the chief sponsor of one bill she says should let police do their job but also preserve an expectation of privacy.

The ACLU, which backs the legislation, says it would:

  • Allow use of the technology for the narrow purpose of locating or identifying a particular phone or other device, after police obtain a court order based probable cause.
  • Require police to describe to the court the nature of the device and its capabilities, whether it will be used to capture non-target devices and the procedures to be followed to protect the privacy of non-targets, including the deletion of data.
  • Mandate that data collected beyond the scope of the warrant be immediately and permanently deleted.

State Rep. Tim Butler, R-Springfield, is a cosponsor of the Williams’ legislation, House Bill 4470, the Citizen Privacy Protection Act.

Sen. Daniel Biss, D-Evanston, is offering a parallel piece of legislation in the Senate, SB 2343.

“I certainly believe we need to have robust intelligence capabilities in our country,” Butler said. “But what scares me a little bit as a private citizen is that if you’re driving down the street talking on your cell or texting in your office or something like that, you have an expectation of privacy.

“It could be you or me who gets his stuff picked up, and then what happens to that?” Butler asked. “Where is that stuff stored, and how could that be used in the future?”

One of the tasks for legislatures, he said, is to balance the need for intelligence and policing with people’s privacy rights.

“I think at the end of the day, we’re a better country when we’re standing up for our liberties that are outlined in our constitution,” he said.

It’s not clear how common the use of stingray technology is in Illinois, although the ACLU identifies Illinois State Police and the Chicago Police Department as two users.

Federal agents must follow U.S. Department of Justice rules when using stingray technology, but local and state police forces are largely free to use the equipment as they wish.

Illinois State Police declined comment for this story, saying in an email, “ISP has not had an opportunity to study the proposed legislation and its impact on conducting electronic investigations.”

A spokesman for the Illinois Association of Chiefs of Police wasn’t immediately available Friday afternoon.

Greg Sullivan, executive director of the Illinois Sheriffs’ Association, said while he’d not had a chance to poll his members, he expected the group would not have major problems with the bills, although it might ask for some revisions to speed emergency applications for court orders.

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