SANTA FE, N.M. (June 14, 2019) – Today, a New Mexico law goes into effect that limits the warrantless use of stingray devices to track people’s location and sweep up electronic communications, and more broadly protects the privacy of electronic data. The new law will also hinder the federal surveillance state. Sen. Peter Wirth (D) filed Senate Bill 199 (SB199) on Jan. 8. Titled the “Electronic Communications Privacy Act,” the new law will 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 law requires police to obtain a warrant or wiretap order before deploying a stingray device, unless they have the explicit permission of the owner or authorized possessor of the device, or if the device is lost or stolen. SB199 includes an exception to the warrant requirement for emergency situations. Even then, police must apply for a warrant within 3 days and destroy any information obtained if the court denies the application. On Jan. 24, the Senate passed SB199 by a 41-0 vote. On Jan. 30, the House concurred with a vote of 68-0. With the governor’s signature, the law went into effect June 14. SB199 also bars law enforcement agencies from compelling a service provider or any person other than the owner of the device without a warrant or wiretap order. This includes actual communication content such as phone conversations, text messages and email, location information and other metadata such as IP addresses pertaining to a person or device participating in the communication. A service provider may still share information voluntarily under the law. Law enforcement will have to destroy such information within 90 days unless it gets the consent of the owner or a court order. Provisions in SB199 will 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.
A person in a trial, hearing or proceeding may move to suppress any electronic information obtained or retained in violation of the United States constitution, the constitution of New Mexico or the Electronic Communications Privacy Act. The motion shall be made, determined and subject to review in accordance with the procedures provided in law.MPACT 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 in April 2015, 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 experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community. 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 fusion centers and 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. Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts...
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