New York Court Says NYPD Must Get Warrants To Deploy Stingrays

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Another court has decided warrants must accompany Stingray use. (via the New York Times) The ruling handed down earlier this month clarifies the distinction between the records obtained and the records requested. In this case, police used a pen register request to deploy their Stingray device. As the court points out, Stingray devices grab a lot more than just phone numbers.

A pen register or trap and trace warrant is authorized under New York's CPL Art. 705.00. According to that Article, a pen register is a device that attaches to a landline phone to identify and record "the numbers dialed or otherwise transmitted" in outgoing and incoming calls." CPL 705.00 (1). In addition, CPL 705.00 (2) defines a trap and trace as a similar device to that of the pen register that identifies the "originating number" for a call. It should be noted, however, that Article 705 does not authorize the gathering of location information using a cell phone's Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone's calls or text messages by the use of a pen register and/or trap and trace order.[...]Thus, it is improper under New York Law to authorize the obtaining of any information from a suspect's phone other that the phone numbers dialed or otherwise transmitted in outgoing and incoming calls and/or an originating phone number.

[U]nlike pen register device information or that provided by the CSLI, a cell site simulator device does not involve a third party. "The question of who is recording an individual's information initially is key." See US v Lambis, supra, citing In re US for Historical Cell Site Data, 724 F.3d 600 [5th Circ. 2013] [distinguishing between "whether it is the Government collecting the information or requiring a third party to collect or store it, or whether it is a third party, of its own accord and for its own purposes, recording the information"]. The Lambis court continued: "For both pen register information and CSLI, the Government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the Government cuts out the middleman and obtains the information directly." US v Lambis, Id.By its very nature, then, the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case by the NYPD.

Based upon the information gathered from this order for the defendant's cell phone, Detective Brown located and arrested the defendant three days later on April 15, 2016, inside of 1540 Sterling Place, Apartment 3E in Brooklyn, an address not previously identified as of any interest to this investigation.

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Alabama Media Group Isn't Messing Around With Ray Moore's Silly Threat

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Last week, we wrote about the truly ridiculous letter sent by Senate candidate Roy Moore's nutty lawyer, Trenton Garmon, threatening to sue Alabama Media Group for defamation for daring to write about reports of Moore's sketchy behavior towards girls and young women. In that piece, we noted that AMG made it clear it wasn't going to back down, noting that it stood behind its reporting and the threats only made the news organization that much more interested in "doggedly" pursuing the truth. Now, as pointed out on Boing Boing, we see the official response from Alabama Media Group's lawyer, John G. Thompson Jr.Suffice it to say, Thompson doesn't have much time for Garmon's nonsense:

You have (now twice) threatened to sue AMG and AL.com concerning AL.com's recent reporting about Roy Moore, Kayla Moore, and their Foundation for Moral Law. You have accused AL.com of making "false reports and/or careless reporting" about multiple subjects related to your clients. Your letter demands that AL.com retract and recant its prior stories and that it "cease and desist" from any further reporting about your clients.AL.com hereby rejects your demand. AL.com stands by its reporting regarding all of the matters addressed in your letter. AL.com has reported on newsworthy matters of significant public concern regarding your clients. Roy Moore is now, and for decades has been, a public figure. He is now running for a seat in the United States Senate. He is asking people of Alabama to financially support his campaign and his Foundation (headed by Mrs. Moore), and to vote for him. Alabamians -- for that matter, all Americans -- have a right to know about the individuals who wish to represent them in public office. Like every political candidate, Mr. Moore is subject to scrutiny and analysis by the media and the general public regarding his fitness for public office. AL.com's reporting has provided the public with important information directly relevant to that inquiry.You accuse AL.com of defamation in purely conclusory fashion. You have not explained how anything that AL.com reported is untrue, inaccurate, or erroneous, nor do you provide any support for your position. You have also not shown that AL.com reported any of its stories with actual malice, as you know you must because your clients are public figures (a point you have admitted in in recent television interviews). To the contrary, an ever-increasing torrent of accusers and journalist investigators have publicly verified the facts reported by AL.com.

Your letter goes on to say that AL.com's reporting has harmed Mr. Moore's reputation. Mr. Moore, however, has quite a colorful past that long-preceded any of AL.com's recent coverage of your clients. Moreover, much of the information that you claim harmed Mr. Moore's reputation had already been published by those who know him personally and reported by other media outlets. In other words, any damage to Mr. Moore's reputation was self-inflicted and had already occurred long before AL.com's recent reporting.

For these and other reasons, we strongly believe that any lawsuit of the type you threaten would be frivolous, and could not be brought in good faith. Should your clients nevertheless decide to pursue this matter further, AL.com will vigorously defend itself, and will employ all available remedies, including a Rule 11 motion if warranted. We are confident that litigation would not only demonstrate that Al.com exercised the utmost diligence and employed high journalistic standards in reporting these stories, but would also reveal other important information about your clients.

We are hereby putting your clients on notice of their duty to preserve and maintain all materials, documents, writings, recordings statements, notes, letters, journals, diaries, calendars, emails, photographs, videos, computers, cell phones, electronic data, and other information that is or could remotely be relevant in any manner to any of the claims that you have made. These include, but are not limited to, all materials and information related to Mr. Moore's history of romantic relationships or physical encounters (whether consensual or not); your clients' fundraising, compensation, and finances; and Mr. Moore's speaking engagements, travel arrangements, and other expenses. As you know, failure to preserve any such materials may expose your clients to sanctions.

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