85 Geo. Wash. L. Rev. 993
For nearly three decades, American law enforcement has conducted a coordinated
campaign across all levels of government to hide its use of a powerful
surveillance technology called cell site simulation. Commonly referred to
as “stingrays,” the devices allow police to covertly monitor cellular communications
and track individuals in real-time with remarkable precision. Despite
the tenuous legal ground on which the warrantless use of the devices rests,
federal law enforcement has contractually forbidden their state and local
counterparts from revealing to courts when they employ stingrays in an investigation.
Records indicate authorities have facilitated this secrecy by attributing
information gained from the devices to a “confidential source” when presenting
it in court.
This Note examines law enforcement’s concealment of stingrays within
the broader context of “the informant’s privilege,” the legal doctrine that allows
the government to shield the identity of confidential sources in criminal
cases. It argues that neither the legal requirements of the privilege nor its underlying
policy rationales support extending protections to inanimate surveillance
technologies and the state actors who employ them. Further, this Note
contends that doing so undermines the rights of defendants and impinges on
the core prerogatives of legislatures and the judiciary.
To rectify the hole in current law that permitted the secrecy surrounding
stingrays to long go unchecked, this Note proposes a pre-trial disclosure requirement
for the investigative utilization of technology not in general public
use. The elements of such a requirement are well established in case law, and
the simple rule would strike the proper balance between security, defendants’
rights, and the integrity of the legal system.