In March of this year, Robert Harrison had a cell phone with him while he was inside his home. Though he has kept and used a cell phone as long as any of us, this time, things were different.
Unbeknownst to Harrison, Baltimore police officers were secretly transmitting signals through the walls of his apartment—without a warrant—to track the location of the phone in his possession. An undercover police officer had planted the phone weeks before with another person, Derrick Smith, who police were trying to convince to agree to a fictitious murder-for-hire plot. The device police were using to track the phone is called a cell site simulator, or more commonly, a “stingray.” It mimics a traditional cell phone tower—like those used by AT&T and T-Mobile—to force not only a targeted cell phone, but all phones in its vicinity to send location and identification information back to the device.
Baltimore police tracked the phone to Harrison’s address. Police then looked up the names of residents living at the address, including Harrison’s, and cross-referenced those names with information related to Smith. Based on what they reportedly found, police suspected Harrison of being an accomplice to Smith.
The chain of inferences leading to Harrison all stem from his possession of a phone, which the police did not learn through a lawful search of his apartment with a probable cause warrant, but instead through the warrantless use of a device that tracks phones—in secret. As Harrison faces trial on serious criminal charges, the government wants to insulate its use of a stingray with layers of excessive secrecy and expansive legal arguments. And that’s where the ACLU has stepped in.
Last week, we filed an amicus brief in Harrison’s case supporting his motions to the court to compel the government to give him information on the stingray so that he may build his defense against its unlawful use, and to any evidence that Baltimore police obtained through use of the stingray.
In our brief, we make three arguments:
1. The use of the stingray violated the Fourth Amendment.
The use was unconstitutional because the government did not obtain a warrant, which is required in any use of a stingray because of the invasive nature of the technology. We present facts about stingrays that are relevant to the court’s understanding of just how intrusive these devices are:
- Stingrays broadcast signals that penetrate the walls of homes and other constitutionally protected spaces.
- Stingrays can pinpoint an individual with extreme precision.
- Stingrays can search information stored on phones.
- Stingrays significantly affect the privacy of innocent third parties.
- Stingrays can disrupt the ability of phones in the area to make calls.
Even if the government had obtained a warrant in Harrison’s case, its use of the stingray would still raise Fourth Amendment concerns. This is because the Framers of the Constitution expressed a “” against “general warrants,” which is what a warrant to use a stingray may amount to, considering that the device can collect information about potentially hundreds of innocent bystanders’ phones.
2. The government did not properly obtain authorization to use the stingray due to the government's failure to explain to the judge that it was going to use a stingray.
The the police submitted to obtain a court order (which is not the same as a ) for authorization to use the stingray was invalid because the application in fact requested permission to use a pen register/trap and trace device, which records the phone numbers with which a particular phone communicates. Pen registers, which have been in use for decades, have significantly lesser surveillance capabilities than stingrays, which acquire location and identifying information from all phones in the area. We explain how the government is engaged in a pattern of misleading courts in its requests for authorization to use stingrays (see and ). In Harrison’s case, had Baltimore police been more transparent to the court, the judge may have demanded further information before issuing the order, or denied the request altogether.
3. The government should be compelled to disclose information to the defense about its stingray use.
The government has argued that it has a “law enforcement privilege” to not disclose information on police tactics and strategy. First, we argue, the law enforcement privilege is irrelevant to this case because it only applies to certain police methods that are not at issue here. More importantly, there is already a wealth of public information available about stingrays, much of it disclosed by the government itself in , , and other forums. The government is seeking to keep information about stingrays secret, but the reality is that it let the cat out of the bag a long time ago.
The ACLU takes a strong position against the government’s attempts to use new technologies to side-step old rules. Every person in this country has a right against unreasonable search and seizure of their persons, effects, and homes under the Fourth Amendment. When Baltimore police unlawfully sent a signal to detect the phone in Harrison’s home, it also gathered information about all the phones in the area—any one of those phones could have been yours or mine. Stingrays or not, the government must follow the rules when it conducts law enforcement investigations. Keeping information about its use of new technologies secret from the courts endangers our right to be free from unreasonable government intrusion into our private lives.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.