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Thursday
Dec292016

S.C. Lawmakers Pushing 3 Stingray Bills?

By TechDirt

It's really, really difficult to give the South Carolina legislature any credit whatsoever. In the past few years, it has offered up bills that:

required journalists to register with the government before enjoy their First Amendment rights (to make a point about the Second Amendment)

criminalized profanity in public forums (including the internet)

criminalized the recording of criminal acts

- required computer sellers to install default porn blockers in devices (that could be removed for $20)

The track record of this state's legislature is less than stellar. Hell, it's less than passable. 1/5 would not re-elect.

But there are still a few legislators with good ideas trying to do good things within the confines of a state where adultery is still considered a criminal actThe Tenth Amendment Center briefly highlights three new bills targeting law enforcement Stingray device use, all with their own merits.

The first, brought by state rep J. Todd Rutherford, is the most extreme of the three.

The legislation would prohibit any state or local law enforcement agency in South Carolina from purchasing cell site simulators, commonly known as “stingrays.”

At this point, use of these devices by South Carolina law enforcement is unconfirmed. If, indeed, no agencies are in possession of IMSI catchers, this bill would maintain the status quo. If agencies are already in possession of the devices, the bill would require these agencies to discontinue use and... ask Harris Corp. for a refund, I guess. This wouldn't prevent state agencies from asking for federal assistance and borrowing their devices, but it's still the most restrictive Stingray-related legislation proposed yet.

As such, it will probably never become law. The other proposals have a much better chance of reaching the governor's desk. Rutherford's backup proposal would prevent agencies purchasing cell tower spoofers from entering into nondisclosure agreements with manufacturers.

The third bill being introduced should be pushed in concert with Rutherford's second bill. Rep. Cezar McKnight's proposal would prevent state law enforcement agencies from signing nondisclosure agreements with the FBI, which has been standard procedure since the modified military tech began making its way to police departments around the nation. This would help ensure any evidence obtained with these devices will be properly presented in court, rather than obscured behind parallel construction. Or it could, theoretically. The bill ties this to warrant usage, so nondisclosure agreements would be allowed if the agreement doesn't stipulate the devices should be deployed without securing a warrant first. This ties it to the DOJ's current Stingray guidelines, which is better than continuing to obscure device deployment behind pen register orders.

The FBI's nondisclosure agreements have never specifically instructed law enforcement to avoid seeking warrants. However, the implication of the demanded secrecy pretty much made it impossible to seek a warrant, since doing so would disclose use of the device. Parallel construction was encouraged if warrants were sought and evidence introduced in court, but the FBI never strictly forbade the use of warrants in its nondisclosure agreements. So, the bill should be reworded to forbid entering into nondisclosure agreements with federal agencies and drop the clause tying it to warrant requests.

All in all, it's an encouraging set of proposals, but it's hard to see law enforcement agencies letting any of these make it to the governor's desk without a fight.

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