Law enforces in Oakland, California pulled the Federal Bureau of Investigations (FBI) in to assist with a murder case. The assistance that the local law enforcers were looking for was the FBI’s Stingray cellular interceptors, which the agency was more than happy to provide. However, the FBI didn’t bother acquiring a warrant before deploying its interceptors, which didn’t sit well with the suspect’s attorney. In response to the attorney’s protest the Department of Justice (DoJ) said that it didn’t need a warrant because cellular signals are emitted and therefore not private:
The DOJ says that because the stingray was configured to act like a “pen register,” originally a century-old device designed to capture incoming and outgoing calls, and solely capture non-content data, then it was not a search. Use of pen registers, as well as the use of 1970s and 1980s-era “beepers” (short-range FM radio transponders) that can reveal a given location, have been repeatedly upheld by the Supreme Court. Plus, because Ellis wasn’t found in his own apartment, but in another apartment, he could not claim a privacy interest. And finally, even if Ellis could claim a privacy interest in his phone, that still doesn’t matter, DOJ attorneys claim.
“However, signals emitted from a phone are not the same, since they are not by their nature private,” prosecutors continue. “They reveal nothing about the person and are being transmitted out to the world, or at least to a third-party service provider, just like the beeper signals in Knotts.”
This brings me to an interesting point. Cellular signals are encrypted, albeit poorly. In order to intercept cellular signals Stingray devices have to break that encryption. If we look at another law, the Digital Millennium Copyright Act (DMCA), we can see that the actions taken by the government would be considered illegal if they were being used to bypass some form of copyright protection.
The DMCA makes it illegal to bypass any copyright protection mechanism, no matter how shitty it is. If a copyrighted work is encrypted with the Data Encryption Standard (DES), a broken encryption algorithm, and an unauthorized party breaks that encryption to bypass the copyright protection they have committed a crime under the DMCA.
Perhaps people should start claiming copyrights on the contents of their phone calls and text messages. Maybe they could then gain some protection against organizations that are bypassing the poor encryption that is used to keep their communications confidential.