FL Supreme Court says warrantless cell phone spying a no-go

By William Patrick | Florida Watchdog

TALLAHASSEE, Fla. — Thanks to the Florida Supreme Court and a drug dealer, Sunshine State police can no longer track unsuspecting citizens through their cell phones without a warrant.

That’s welcome news to those concerned about local law enforcement’s use of advanced surveillance technology, sometimes supplied by military contractors, to monitor cell phone locations and incoming and outgoing phone numbers.

Public records obtained by the American Civil Liberties Union show the practice has been widespread and mostly under the radar.

Law enforcement officials contend the surveillance technique and the associated electronic tools are used to track criminal suspects, and the excess information is discarded.

But with the police providing their own oversight, the exposure of sensitive private information and the potential for abuse are major concerns, a former state prosecutor told Watchdog.org.

“You’re supposed to be free from that kind of government intrusion,” said Christopher Torres, a former state assistant attorney general, now a defense attorney at the Tallahassee-based law firm Casey Torres.

“What’s troubling about some of this technology is that it’s provided by national defense companies allegedly to give police intelligence capabilities to combat terrorism. The problem is that it’s being used for law enforcement purposes. It’s a lesson in mission creep,” Torres said.

The high court specifically addressed a case involving police orders to cell phone companies. But its ruling extends to cover controversial mobile surveillance devices known as Stingrays, portable electronic tools that mimic cell phone towers and trick all phones in a given area into transmitting identifying information.

Earlier this year, appellate court deliberations revealed the Tallahassee Police Department used a Stingray some 200 times since 2010 without seeking a warrant.

Tallahassee police said the Stingray was given to the department by a private manufacturer, which, in turn, required a nondisclosure agreement, effectively hiding TPD’s use of the equipment.

According to ARS Technica, Stingrays are exclusively manufactured by the Harris Corp., a Melbourne, Fla.-based telecommunications company earning $5 billion annually for supplying electronic equipment to government, defense and commercial entities.

The state Supreme Court’s decision marks the first time a state court has limited real-time, cell phone surveillance under the Fourth Amendment, the irony being it took the case of a drug dealer holding 400 grams of cocaine at the time of his arrest to compel the constitutional protection. Police monitored the suspect’s cell phone correspondence over time and eventually pulled him over when he held the illegal narcotic.

Government watchdogs have long warned against surveillance tactics that broadly expose the personal information of countless innocent people in attempts by law enforcement to identify crime suspects.

“The ends does not justify the means,” said Torres.

“Why not just wiretap everybody’s cell phone, and if they’re not doing anything illegal then they have nothing to worry about,” he said, facetiously.