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Elected officials scrutinized a bill that would affect the use of certain wiretapping methods by law enforcement during a public hearing on Aug. 18. The sponsors of the bill, which specifically covers so-called pen register and trap/trace devices, argued that it simply brings Wisconsin up to speed with existing federal law. However, two members of the Assembly’s Committee on Criminal Justice & Public Safety said they fear it may also bring unintended consequences.
Pen register and trap/trace devices have been utilized by law enforcement for decades. On paper, they act as a kind of low-grade wiretap which detects and records information like which numbers are dialed by a phone and how long calls last. Rep. Jeffrey Mursau (R-Crivitz) noted during the public hearing that current law is “out-dated” and only applies to telephone lines.
“This is making it difficult for prosecutors and law enforcement to secure warrants for the placement of these devices to capture over-the-air or cell data that could be crucial to a criminal investigation,” said Mursau. “Assembly Bill 253 will align our state law with federal warrant requirements for pen registers and tap/trace devices. Federal law has already adapted to the ever changing times, but Wisconsin hasn’t.” During the hearing, legislative counsel clarified that pen register and trap/trace devices are designed “not to capture the content of the information. Simply the origin and ultimate destination of the transmission.”
Mursau introduced the bill alongside three other Republican state representatives and one Democrat. The bill has also been co-sponsored by Sen. Andre Jacque (R-DePere), who spoke about the bill on June 2. Jacque was recently hospitalized with COVID-19, and did not appear during the Aug. 18 hearing. A spokesperson for Rep. Samba Baldeh (D-Madison), the lone Democrat to cosponsor the bill, highlighted that the bill was largely crafted and backed by the state’s Department of Justice (DOJ).
Exactly what the bill would do once implemented has not become clear during the past two meetings. This last public hearing was the first to mention “cell data,” while Jacque’s June 2 testimony specifically referenced social media communications, which aren’t mentioned anywhere in the bill text. One question that has not been answered is which particular devices police may use to achieve a pen register or trap/trace. Whereas older devices may have only intercepted a limited amount of information, modern surveillance devices have a wide variety of capabilities.
Doesn’t that seem weird that a DA from halfway across the state would be able to do that to a person who’s committed no crime in a completely different part of the state?
– Rep. Tip McGuire (D-Kenosha)
One widely distributed piece of technology is the cell site simulator. Such devices, sometimes called Stingrays after a particular brand, connect to your phone by acting like a cell tower. Police can triangulate a phone’s location using Stingray technology, down to which room in a specific building the phone is in. With the correct software, however, cell site simulators have many abilities including tapping into the content of calls, spoofing text messages, or blocking phone service. The Milwaukee Police Department, which replaced its Stingrays in 2019, say its devices cannot tap into calls and can only track location.
Mike Katz-Lacabe, director of research at the Center for Human Rights and Privacy, states that Stingrays have been used as pen register trap/trace devices in the past. A judge may sign a pen register order without knowing how police will actually achieve the intercept.
“Judges have signed off on pen registers for years for Plain Old Telephone Service (POTS),” Katz-Lacabe told Wisconsin Examiner, referencing traditional phone service through lines. “But a pen register for a cell phone is different and can involve physically locating a phone using a cell site simulator. But the paperwork provided by the police to the judge was the same for both or at the very least not clear about the difference.”
Two elected officials on the committee also questioned other aspects of the bill. They raised concerns about provisions that allow prosecutors to apply for intercept warrants in any county court, and not just the court within the county where the device would be used. “First of all,” said Rep. Tip McGuire (D-Kenosha) to Mursau, “the process that we have here is one that automatically a judge essentially certifies this if a DA requests it. So essentially any DA can request one of these pen register or trap and trace for anywhere in the state, whether it’s within their jurisdiction at all.”
McGuire posed a hypothetical scenario. “If a felon in Milwaukee purchases a firearm off an arms list from a guy in Barren County, and then the fella in Milwaukee is pulled over for that, under this bill, the Milwaukee DA could put a trap and trace on the Barren man’s phone because he’s relevant to the investigation, but he hasn’t done anything criminal, right? There’s no crime that he’s committed, and they can monitor all the calls going in and out of his phone?” There was a pause, “Right?” McGuire asked. Mursau responded, “I would assume so.”
McGuire pressed, “Doesn’t that seem weird that a DA from halfway across the state would be able to do that to a person who’s committed no crime in a completely different part of the state?” Mursau conceded, “As you bring that up, I guess I would question that myself.” McGuire added that federal law has a requirement that the jurisdiction must be relevant, which isn’t part of Wisconsin’s wiretap bill.
“It’s not really a very high standard, and it’s only one person that’s making that determination,” said McGuire. “The court actually has no say in whether it’s relevant. They can’t say, ‘This is completely irrelevant to the investigation. I don’t know why you’re requesting this.’ They have to certify if whoever the DA is, this one individual, says, ‘I believe this is relevant to the investigation.’” McGuire continued to press that probable cause standards for other warrants set a higher bar than electronic intercepts. “Existing law in Wisconsin doesn’t have any sort of legal standard attached to this or judicial review,” said McGuire. “But I do think that’s something that would be absolutely appropriate. And frankly, I didn’t know much about the statute before. And I was a little shocked that that wasn’t there already.”
Rep. Shae Sortwell (R-Two Rivers) echoed many of McGuire’s concerns and took them a step further. “I just wanted to let you know off hand that that is concerning to me, as written,” said Sortwell. “That there could be people from outside your jurisdiction making decisions for the citizens of other parts of the state. And I understand that there is overlap with federal law with this. Probably, I don’t know for sure, but I would guess it’s mostly coming out of the Patriot Act which has serious concerns with it. Because they had similar type legislation wording as part of that.”
The implications of an already established surveillance state are clear in Sortwell’s mind. “I make my priority to defend our Constitution,” he told Wisconsin Examiner. “The concern that Rep. McGuire brought up — and I agreed with — is that you may have people caught up in surveillance that were not the target [of the] actual warrant approved by the judge. And a judge in your own community should be making the determination whether a search warrant should be approved, rather than any judge in any part of the state being able to make that determination.” He added that, “This was a concern raised by many about the Patriot Act over the years. Namely that American citizens could be surveilled without a warrant approved by a judge for their surveillance because they would be caught up as part of investigating someone else.”
Lines between jurisdictions can sometimes blur. Wisconsin’s fusion centers, which bring together state and federal law enforcement agencies, have wide jurisdictional responsibility. The fusion center in Milwaukee is responsible for the eight major southeastern counties; its counterpart in Madison covers the rest of the state.
“It is all part of the issue of unintended consequences that we must be exceptionally careful to avoid as we write legislation,” warned Sortwell. “I have no issue with the intent of the bill to allow a properly authorized warrant to be more effective using modern technology. But we don’t want the Constitution violated unintentionally.” He added that, “I look forward to passing an amended bill that addressed these concerns.”
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