With the pervasive use of smart phones in business and with those phones often containing confidential personal and business information, employers should be aware that law enforcement may not only conduct a warrantless search of that information, but also may take that information without the public even knowing it has that ability.

In January 2015, the FBI took the position that court warrants are not required when deploying cell-site simulators, known as “stingrays,” “kingfish” or cell site simulator, in public places which imitate cell phone towers and capture the locations, identities, calls, texts, and emails of mobile phone users. This small rectangular device that is small enough to fit into a suitcase.

The New York Times reports on March 15, 2015, that in order for local law enforcement to obtain a “sting ray” device, law enforcement officials must sign a nondisclosure agreement preventing them from saying almost anything about the technology. The nondisclosure agreements for the “stingrays” are overseen by the FBI, but typically also involve the Harris Corporation, a multibillion-dollar defense contractor and a maker of the technology.  For instance, according to the Times, a journalist in Tuscon, Arizona, was given a copy of a nondisclosure agreement that stated, “[t]he city of Tuscon shall not discuss, publish, release or disclose any information pertaining to the product… without the prior written consent of Harris.”

The nondisclosure issue came to light when a sheriff in Silicon Valley asked county officials to spend $502,000 on the technology, which she said allowed for locating cellphones of terrorists or a missing person. However, when asked for details, the sheriff offered no technical specifications and acknowledged she had not seen a product demonstration. Despite this secrecy, the county supervisors voted 4 to 1 to authorize the purchase.

The concern about the use of “stingrays” both by the FBI and local law enforcement is that the technology, unlike other phone surveillance methods, can scan all the cellphones in use in the area, not just the phone targeted. For example, an employee may have confidential, trade secret information on his or her cell phone, and the FBI may unintentionally take this information from the employee without a warrant and without the individual or the community knowing that law enforcement had this capability.

Cell site simulators are increasingly popular among law enforcement officials as they add other digital tools, including video cameras, license-plate readers, drones, programs that scan billions of phone records, and gunshot sensors, to their arsenal. While some of these tools have invited resistance from municipalities and legislators on privacy grounds, the majority of states and municipalities allow unrestricted use of these devices. Jackson Lewis attorneys are available to advise companies on the scope of the Fourth Amendment and their rights in maintaining their confidential information on all of their business-related electronic devices.