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The police are snooping

If you're a criminal and use a cellphone to communicate with your partners in crime, there's something you probably should know: The police may not only have your number, they may be able to pinpoint your location to within a few feet wherever you are and find you even if you're not talking on the phone. And if you're not a criminal, you may be interested to know that your phone data could be scooped up in the bargain.

That reality came into focus in what might otherwise have been a run-of-the-mill robbery trial Monday in Baltimore Circuit Court. The matter ended with the judge taking the unusual step of threatening to hold a city police detective in contempt of court for refusing to discuss details of the techniques that allow officers to use data transmitted by cellphones and other digital devices to track down criminal suspects.

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It's long been known that police can get a court order to obtain the records of a suspect's calls from cellphone service providers. Usually all it requires is for police to convince a judge there is probable cause that a search of the caller's phone records will uncover evidence of a crime. The evidence could be a pattern of calls to or from someone already charged with the crime, or it could take the form of location and time data collected by the suspect's phone that place him at the scene when a crime was committed.

What was unusual about Monday's case, however, was that police appear to have obtained the cell phone records of the defendant, a teenager accused of robbing a Papa John's pizza delivery driver at gunpoint last April, not from his cell phone service provider but from the department's own surveillance technology. The department has a so-called "stingray" — a device that mimics a cell phone tower and forces nearby phones to connect to it — but the officer insisted in court that it was not used in this case. What technology the department did use, he wouldn't say.

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Stingray-like devices were originally developed by the military to spy on terrorist suspects, and later made available to police departments across the country by the Department of Homeland Security. They are often mounted on aircraft and are capable of listening in on all the cellphone signals in a particular area and scooping up those associated with the suspect's phone. Police can then use those signals to determine which building, which floor and even which room in an apartment the suspect's phone is transmitting from. Moreover, the phone can be prompted to transmit its location even if it's off or the suspect isn't using it.

When the defense attorney at Monday's trial pressed the detective on the stand to tell the court how officers had tracked his client, the witness said the technology was secret under a non-disclosure agreement between the police department and the FBI.

But that wasn't good enough for Judge Barry G. Williams, who rightly wanted to know whether the evidence against the defendant — a .45-caliber handgun and the suspect's cell phone — was admissible in court. Ultimately, the assistant city state's attorney handling the case decided to withdraw the evidence rather than reveal details of the tracking technology that led police to find it.

That resolution allowed the trial to proceed but left many important questions unanswered. How widely is such technology being used and what is it being used for? What little could be gleaned from Monday's trial raises questions about the police's ability to collect vast amounts of cellphone data from ordinary citizens as well as criminal suspects. What happens to that information and does the public have a right to know how it is used and how long it is kept? And even if the technology was originally developed to fight terrorism, what else is it being used for today?

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Courts across the country are struggling to define the issues and assess whether use of these new technologies by police departments pass constitutional muster on privacy and other grounds. Monday's trial managed to sidestep confronting such issues head-on, but that doesn't mean they're going away. Citizens need to know a lot more about the sophisticated surveillance technologies used by police who could be secretly gathering data on them whenever they pick up their phones.

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