Saturday, November 11, 2017

As DRT-boxes track Texans from planes, considering options for restricting government cell-phone surveillance

The Texas National Guard is using so-called IMSI catchers, aka "Stingrays" or "DRT-boxes (read: Dirt Boxes, which are IMSI catchers attached to airplanes or drones), which are fake cell towers used to trick your phone into routing its call through government surveillance technology instead of your carrier. See an excellent article by Melissa del Bosque, with one caveat. She quoted Austin attorney Scott McCollough declaring:
“These DRT boxes are far more capable than the old Stingrays,” McCollough said, “The old-style Stingrays were not able to capture content. Guess what? The DRT box is. … These newer ones get everything.”
McCollough knows more than most about the law surrounding cell phone surveillance (some of his clients are small cell-phone companies which must comply with law enforcement requests for customer data). But he's wrong about the tech. The old Stingrays also gathered content, by definition, since the entire call including content is routed through the Stingray, bypassing commercial cell phone towers. And as of 2013, they were already selling an "interception model" of the Stingray for which gathering content was an option.

For several years, your correspondent was part of a coalition which, for a couple of sessions, made a big push at the Texas Legislature to require warrants for the government to gather people's cell-phone location data, which implicates how the Stingrays/DRT boxes are used. But despite more than 2/3 of the Texas House signing onto the bill, it couldn't clear the senate. So we dropped that bill in 2017, though the rise of a new Speaker could reinvigorate the effort in 2019. (Who knows, maybe one of the past supporters will become Speaker next. Most of them were supporters.)

Alternatively, the US Supreme Court is about to hear a case dubbed Carpenter which could end up deciding that warrants should be required for the government to gather and use personal cell-phone location data, which could moot the legislative push for a warrant.

Regardless, use of this tech has expanded beyond the capacity of existing constitutional and legislative structures to restrain it. Whether such restraints come from the judiciary or legislative sources, or more likely both, to me matters little. Folks like Orin Kerr who insist that only legislation is an appropriate solution are IMO disingenuously using the distinction to argue for doing nothing. In this situation, a vacuum of authority is what allowed the government to use these emerging technologies to track average Americans in the first place. Both branches  - legislatures and the judiciary - have a role to play in in preserving Fourth Amendment rights and updating their interpretation to match 21st century realities. It's not enough to protect our "papers" anymore, the cell-phone era exposes much more data about us than just what we write down.

The fact that, in light of that vacuum, the executive branch will use surveillance technology not forbidden to it shouldn't surprise anyone. Texas had a chance to restrict this sort of surveillance tech and didn't do it. So government surveillance is what we get, until one or both of the other two branches step up to stop it.


Steven Michael Seys said...

We already have ubiquitous video surveillance in major population centers. The gathering of electronic data on every citizen is just the next step in the road to totalitarian control of the people. Left unchecked by constitutional restrictions, governments tend toward a more totalitarian form in a natural evolution. The role of the courts is to apply those restrictions and the elected legislature's role is to define them.

Squarer Pegs, Rounder Holes said...

Thanks to the sheep at the polls who voted for Proposition 4 in last weeks state constitutional amendments election, Texans have weakened their judicial branch's ability to do its duty of checking and balancing in a timely fashion. I guess we'll now habe to endure the executive branch's cellular espionage for at least 45 days before it can be declared unconstitutional.