Maryland Court says Use of IMSI Catchers Violate the Fourth Amendment
By Nicole Kramer
The following blog post was written following an article featured on Fortune’s online platform, and can be found here.
On March 30, 2016, the Maryland Court of Special Appeals issued an opinion written by Judge Leahy that found that the Baltimore police departments’ use of IMSI catchers to track suspects’ phones without search warrants, violated the Fourth Amendment as an unreasonable search.
IMSI catchers such as the Hailstorm at issue in the Maryland case, are eavesdropping devices that intercept mobile phone calls and help determine a users precise location, thereby “transform[ing]” mobile phones into “real-time tracking device[s].”[1] Such devices are increasingly being used by law enforcement agencies without warrant raising significant privacy concerns. In Baltimore alone, it is estimated that the technology has been used in at least 2,000 investigations.[2]
The Baltimore Police Department had relied on an approved application for a pen register/trap & trace order on the suspect’s cell phone to locate and arrest the petitioner in this case. One argument that arose in the lower court arguments was that, unlike with GPS or cell site information, information gathered with IMSI catchers was not generated willingly by the phone, rather the technology “forc[ed] the phone to emit information”[3] and identify itself. The information was not merely available to anyone who wanted to look for it; it was not “readily available and in the public view.”[4] And this fact weighed heavily in the court’s opinion.
In the opinion, Judge Leahy discussed Justice Douglas’s dissenting and concurring opinions in Osborn v. United States, Lewis v. United States and Hoffa v. United States which raised a fear of a society becoming more accustomed to “surveillance at all times.”[5] She sided with the court in Katz, especially Justice Harlan’s concurrence, which offered individuals strong protection against unreasonable searches and seizures in the face of advancing technology. The court ultimately found, in accordance with the Supreme Court rulings in Karo, Kyllo, and Jones, that Justice Harlan’s two-part test should be applied, and that “people have an [objectively] reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement,”[6] and therefore that the use of such technology required a search warrant imposing reasonable limitations on the scope and manner of the search.[7] The court further added that the prior case law established that the “use of surveillance technology not in general public use to obtain information about the interior of a home, . . . is a search under the Fourth Amendment.”[8]
However, as the court noted, there are some exceptions to this conclusion. The court first looks to the Third Party Doctrine and United States v. Miller and Smith v. Maryland, but ultimately rejects this exception. The doctrine “provid[es] that an individual forfeits his or her expectation of privacy in information that is turned over to a third party.”[9] The state argued that the petitioner forfeited his expectation of privacy by carrying a cell phone that he knew would be communicating with nearby cell towers. But in these cases and those that followed from it, including Graham, it remained necessary that the user voluntarily convey the information to a third-party.[10] Which did not happen in Andrews.
The Maryland Court ruling was a success for privacy advocates. The state’s attorney general has not stated whether his office will challenge the ruling.
[1] State v. Andrews, 2016 Md. Ct. Spec. App. LEXIS 33, *1 (March 30, 2016).
[2] David Z. Morris, Maryland Court Says Phone Tracking Unconstitutional, Fortune (April 3, 2016, 4:22PM EDT), http://fortune.com/2016/04/03/maryland-court-phone-tracking/.
[3] Andrews at *19.
[4] Id. at *59.
[5] Id. at *28.
[6] Id. at *2.
[7] Id. at *65.
[8] Id. at *50.
[9] Id. at *65.
[10] Id. at *69-70.