Signed as Law: New Mexico Strengthens Electronic Communications Privacy Act

Signed as Law: New Mexico Strengthens Electronic Communications Privacy Act by  for Activist Post

Last Wednesday, New Mexico Gov. Michelle Lujan Grisham signed a bill into law that expands protections under the Electronic Communications Privacy Act. The new law not only increases data privacy in the state; it also further hinders the federal surveillance state.

Sen. Daniel Ivey-Soto (D-Albuquerque) introduced Senate Bill 270 (SB270) on Feb. 4. The new law expands provisions of the Electronic Communications Privacy Act that passed last year to limit the retention and use of incidentally collected data.

The Electronic Communications Privacy Act helps block the use of cell-site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device. Under the law, police must obtain a search warrant or wiretap order before using a stingray in most situations. The law also bars law enforcement agencies from compelling a service provider or any person other than the owner of the device without a warrant or wiretap order. This includes actual communication content such as phone conversations, text messages and email, location information and other metadata such as IP addresses pertaining to a person or device participating in the communication.

SB270 strengthens protections by requiring police to seal any information obtained through the execution of the warrant that is unrelated to the objective of the warrant, or that is not exculpatory to the target of the warrant. The information cannot be subject to further review, used, or disclosed, except pursuant to a court order or to comply with discovery. The law also requires the destruction of any Information obtained through the execution of a warrant or order that is unrelated to the objective of the warrant as soon as feasible after the termination of the current investigation and related investigations or proceedings.

On Feb. 16, the Senate passed SB270 by a 39-0 vote. The House approved the measure 69-0. With the governor’s signature, the law went into immediate effect.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.

The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.

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