Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

THE NEW “STINGRAY” CONTINUES THE TREND FOR LAW ENFORCEMENT AND AGAINST PERSONAL PRIVACY

Granted, it was longer ago than I had expected, but when we left off, we were discussing Cell Site Simulators – often referred to as “Stingrays”, one of the newer investigative tools of law enforcement. The Stingray is used to gather sensitive information about cell phone users by essentially tricking their phones into thinking they are communicating with cell phone company towers, when in fact they are communicating with law enforcement.

The Stingray not only gathers data about the intended target, but can also sweep up information from countless bystanders who end up monitored just because they were in the wrong place at the wrong time.

Since the days after September 11, 2001, law enforcement, on varying levels, has been given extra powers to eat away at our various rights, particularly those regarding privacy. The process, whether it is a murder case, a drug case or any other case has almost become predictable

Step One: “No, we could not spy on someone like that. It is not allowed”;

Step Two: “We cannot spy on folks like that in regular criminal cases. We only get o use those extra powers when dealing with terrorism”;

Step Three: Ok, we figure we ARE allowed to use those powers in normal criminal cases…but we don’t have the funding to do so; and, finally,

Step Four: Yes, of course we used it to fight regular crime. Doesn’t ALL criminal behavior endanger our way of life?

The American Civil Liberties Union reports that the Boston Police Department has now acknowledged that it owns a Stingray, but has claimed that it seeks warrants before using the device.

However, we are in the world of legalistic, where lingual-agility is a mandatory skill. Sometimes, the secret is in what is not said. For example, in this case, other statements by the BPD indicate that the Department may not require police officers to actually say in the applications for a warrant that a Stingray will be used if the warrant is granted.

If you do not tell the court that a Stingray is going to be used, how can you say that the court knowingly permitted the use of a Stingray by approving the warrant?

The potential result, as things are, is that judges who need to know what kind of surveillance they are being asked to authorize…don’t. Down the road, attorneys who need to know what type of evidence is being gathered used about their clients…don’t. Last but not least, the public needs to know when and how this invasive technology is used. But as there is no mention,….we don’t.

That’s why, on January 11, 2016, the ACLU of Massachusetts submitted a public records request asking the BPD to disclose recent warrant applications for Stingray use, regardless of whether the warrant application actually used the term “Stingray.” The ACLU’s understanding is that, in response to the public records request, the BPD is now gathering information on the number times it has used a Stingray in an investigation, the types of investigations involved, and the number of warrant applications BPD sought to use a Stingray.

Speaking to WGBH radio on February 24, 2016, Boston Police Commissioner William Evans said that the BPD is “working with” the ACLU to get data on Stingrays deployment. Based on those statements, we hope that the BPD will quickly comply with the public records law and provide the documents it is now gathering in response to our request, as well as the warrant applications themselves. That disclosure would provide much-needed transparency to both judges and the public.

Maybe.

Attorney Sam’s Take On “Big Brother”

At the end of my last post, I suggested you check out the book 1984. It was written many years ago and told about a futuristic United States in the then-future year of 1984. In the book, the government’s ability to control and watch people was epitomized in the being of “Big Brother”. Big Brother, i.e. the government, was always watching.

You may wish to believe that only “bad guys” have things to hide. That would not only be factually untrue, it is actually contrary to the foundations upon which this country was based.

More importantly, and more to the point of a Criminal Law blog, you would be likely to change your mind about things like privacy rights when you or a loved one are accused of a crime based upon information which has been taken out of context and contrary to your right to privacy.

Still think it could not happen to you?

I can’t tell you how many of my clients thought that too.

They have since realized the truth…albeit a little too late.

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