Washington State Capitol, Olympia. Photo by Jon Connell.
State legislators are striking back against StingRays.
A few months ago, I wrote about local police departments’ increasing use of StingRay devices and similar means of large-scale cellphone tracking. The devices, also called cell site simulators, impersonate cellphone towers, allowing law enforcement to intercept information from cellular devices without the knowledge or participation of telecommunications providers. While these tools are powerful, they raise serious privacy concerns; unlike a traditional wiretap focused on one phone, StingRays scoop up the information of everyone using a cellular network in the device’s range.
Legislators in Washington state have become the latest to call for restrictions on the use of cell site simulators. A bill to that effect has already passed in the state’s House, and was voted out of a Senate committee earlier this week. Should it become law, the bill would represent the strongest curb on StingRay use yet in place. Not only would police need to obtain a warrant, but would have to immediately destroy any data picked up from bystanders not covered by the warrant they obtained.
The American Civil Liberties Union, which has identified 48 agencies in 20 states that use cell site simulators, has already praised a similar law that recently passed in Virginia. While not quite as strict as Washington’s bill, Virginia’s law also requires a warrant to intercept cell data. Several other states have laws that may address the use of StingRay devices, but these older statutes leave enough ambiguity to allow disagreement about their application.
It is heartening to see Virginia and Washington take action to place cell site simulators firmly under court control in order to ensure their populations’ privacy and Fourth Amendment rights. But it is disturbing that law enforcement authorities, in those states and elsewhere, continue to go to great lengths to prevent information about how these devices are being used in police work from entering the public domain.
Rep. David Taylor, a state legislator in Washington who is pushing the new bill, admitted at a public hearing that he has no idea which law enforcement agencies in his state currently use StingRays. This is not surprising, considering the near-total silence from police. In fact, The New York Times reported, law enforcement officials must sign a nondisclosure agreement with manufacturers before they even purchase the technology.
Law enforcement agencies are fighting hard to maintain that secrecy. A Chicago resident filed a lawsuit against the city after failing to obtain records of cellular tracking equipment purchases through a public records request. While he has succeeding in gaining some information, including that the Chicago Police Department did purchase StingRays and similar devices, the city said it could not discuss how they were used due to the FBI’s restrictions. The agency has said that any disclosure could allow criminals and terrorists to “thwart the use of this technology,” according to The Times.
This stance was challenged earlier this month by a judicial ruling in New York, ordering the Erie County Sheriff’s Office to turn over documents concerning its use of cell site simulators. This ruling also sprang from a public records request, in this case from the New York Civil Liberties Union. In the ruling, Judge Patrick NeMoyer wrote, “the instructions set forth in the purchase orders […] was and is of quintessentially compelling interest to and of undeniable impact upon the taxpaying public.”
Local agencies’ commitment to silence has gone so far as to compromise prosecutions. A judge in Baltimore threatened to hold a detective in contempt of court for refusing to discuss the device’s use; rather than fight it out, prosecutors decided against using the evidence at all. And rather than show a cell site simulator to defense attorneys, Florida prosecutors offered a man who allegedly committed a robbery using a BB gun a plea bargain. The defendant pled guilty to a second-degree misdemeanor, serving six months’ probation rather than a minimum four-year prison sentence for robbery with a deadly weapon. When the defense lawyers attempted to get police investigator Robert Newberry to explain how the police pinpointed the defendant’s location, he said he couldn’t address it “because I don’t know the magic behind it.”
Given the secrecy surrounding StingRays, local and federal agencies who use them may as well offer “magic” as an explanation, before assuring us that “It is not nearly as invasive or as sinister as it is sometimes characterized to be,” as Christopher Corbitt, who operates the Tallahassee police’s electronic surveillance operations, told the Florida man’s defense team when deposed. They seem to believe we should just take their word for it.
Luckily for us, state legislators are beginning to step up and make clear that this is nowhere near good enough. And in some jurisdictions, such as Santa Clara County, California, officials are pushing back against requests to spend taxpayer dollars on technology that police departments will not or cannot explain, at least without any oversight or restriction. What remains to be seen is how state restrictions on StingRays will play out when they run up against the limits of federally mandated silence.
We already know that the federal government has put pressure on police not to discuss these capabilities; the question now is whether local authorities will be forthcoming with judges and, perhaps, legislative committees that want to know the details. The early signs are not promising. The proper outcome in the absence of such openness would be to drive this equipment out of routine law enforcement altogether if it will not be subject to routine law enforcement oversight. This would restrict the technology’s domestic use, at most, to the national security context in which it was developed. And that will be the correct outcome if local police choose to treat every case as though it involves the threat of espionage or terrorism.