Turning Your Phone On Is Consenting To Being Tracked

Baltimore Police obtained an arrest warrant for Kerron Andrews, in 2014, for attempted murder. In an attempt to find him, they used his cell phone. They requested a pen register order from a judge, in the request they mainly expressed the intent to locate him by getting location information, however they never said that they were going to use a Hailstorm (a type of Stingray) to track the cell phone. Not only did they fail to disclose this, they never got a warrant to actually use the device.

A Hailstorm is essentially an IMSI-catcher where it acts like a mobile tower and MITM attacks are conducted on cell phones that connect to it. A big problem is that it’s indiscriminate and ends up scooping up innocent bystanders’ information. It’s no secret that the Baltimore Police loves using Stingrays, Baltimore Sun reports that they “have used the technology 4,300 times since 2007.”

The response to a discovery request asking if police used a stringray was stalled for months until in June 2015, in a hearing right before trial, an investigator testified in court that a stingray was used and that it wasn’t disclosed in any reports. This secrecy is more than likely because of a NDA (non-disclosure agreement) with the FBI. After the hearing, a judge concluded that information was intentionally withheld from the defense by the police, violating their legal disclosure obligations.

In August 2015, another judge concluded that the police had violated Andrews’ Fourth Amendment right because they used Hailstorm without a warrant, and thus granted the defense’s request to suppress all evidence the police obtained as a result of using Hailstorm.

The Fourt Amendment is “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The state appealed this decision. In a recently filed brief, the state says that the Motion Court erred in:

  • Finding that use of a celluar tracking device to locate Andrews’ phone violated the Fourth Amendment
  • Finding that Andrews did not have to show standing before challenging the search of the home where he was arrested
  • Finding that the search warrant for the home where Andrews was located was invalid

For the first statement, the state argued that “The record generated in this case does not support the allegations and speculation of Andrews and the amici.” where the state then goes on to say “Andrews voluntarily shared this information with third parties.” Where “third parties” includes the police.

“While cell phones are ubiquitous, they all come with an “off” switches. If a cell phone is turned on, it is receiving signals from cell towers, and sending signals back out to cell towers. The cell site simulator used in this case took advantage of that fact in order to locate Andrews’ phone. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties.”

This means that turning your phone on is consenting to being tracked which is absolutely absurd.

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