News & Commentary

In March of this year, Peoria resident Jon Daniel set up a satire Twitter account using the name of the town’s elected mayor, Jim Ardis. Using slang and swearwords, Daniel then tweeted a series of jokes. No one in their right mind would have thought this naughty, unprofessional account was actually that of the elected Mayor. That’s why it was funny.

Cell site simulators, also known as "stingrays," are devices that trick cellphones into reporting their locations and identifying information. They do so by mimicking cellphone towers and sending out electronic cues that allow the police to enlist cellphones as tracking devices, thus revealing people's movements with great precision. The equipment also sends intrusive electronic signals through the walls of private homes and offices, learning information about the locations and identities of phones inside. Initially the domain of the National Security Agency (NSA) and other intelligence agencies, the use of stingrays has trickled down to federal, state and local law enforcement. In one Florida case, a police officer explained in court that he "quite literally stood in front of every door and window" with his stingray to track the phones inside a large apartment complex.

In a tremendous step forward for our right to privacy under the Fourth Amendment, the Eleventh Circuit Court of Appeals has held in United States v. Quartavious Davis that police need a warrant to obtain historical cell phone location information from a cell service provider. The ACLU filed an amicus brief in the case, along with the ACLU of Florida, Electronic Frontier Foundation, Center for Democracy & Technology, and National Association of Criminal Defense Lawyers. In April, I argued the cell phone tracking issue before a three-judge panel of the court.

In our 2011 ACLU report on secrecy "Drastic Measures Required," my co-author Mike German and I wrote that "American democracy has a disease, and it's called secrecy." Government secrecy, we wrote, "is growing like a cancer in our democracy."

A Florida judge has sided with the ACLU to order release of information about police use of “stingrays,” which are invasive surveillance devices that send out powerful signals to trick cell phones into transmitting their locations and identifying information. The Tallahassee judge’s pro-transparency decision stands in contrast to extreme secrecy surrounding stingray records in another Florida court, which is at the center of an emergency motion filed by the ACLU today.

A run-of-the-mill public records request about cell phone surveillance submitted to a local police department in Florida has unearthed blatant violations of open government laws, including an incredible seizure of state records by the U.S. Marshals Service, which is part of the Justice Department. Today the ACLU and the ACLU of Florida filed an emergency motion in state court to preserve the public’s right of access to government records.

A magistrate judge in New York has become only the second federal judge to issue a public ruling addressing the lawfulness of so-called “tower dumps”—the intrusive practice by which the government acquires location information for hundreds or thousands of Americans at a time. The judge ruled after inviting the ACLU and the New York Civil Liberties Union to submit a brief in the case in light of the novelty of the issue. And although we disagree with the court’s decision not to require the government to get a warrant before resorting to invasive tower dumps, the court’s decision to demand that the government institute privacy protections for innocent bystanders is a step forward.

“In the nearly two decades since the Commission first began to examine data brokers, little progress has been made to improve transparency and choice.”
     - Conclusion, Federal Trade Commission Report, A Call for Transparency and Accountability

In a partial victory for the public’s right to access and scrutinize court proceedings, a federal judge recently made public most of two previously sealed opinions authorizing gag orders on Twitter and Yahoo to prevent the companies from disclosing grand jury subpoenas demanding some of their subscribers’ records.