Civil liberties groups challenge StingRay surveillance

Lisa Neff, Staff writer

A StingRay or cell-site simulator is a surveillance device about the size of a suitcase that acts like a cellphone tower, sending out signals and tricking cellphones in the area into transmitting their locations and other identifying information.

The device can round up data, collecting information from a suspect’s cellphone and also phones of others in the area.

The devices were developed for military use but have been purchased at about $100,000 each and deployed by federal, state and law-enforcement agencies.

The AP recently reported that police records show the technology — used by warrant squads, robbery divisions, and homicide units — has helped catch suspects in kidnappings, rapes, robberies, assaults and murders. The technology has also aided in locating missing persons.

The ACLU has identified at least 60 agencies in 23 states and the District of Columbia using StingRays. They claim the use of StingRays to track individuals violates the Fourth Amendment, which prohibits unreasonable searches.

LAYERS OF SECRECY

Much of what is known about StingRays is the result of freedom-of-information requests and lawsuits. The secrecy surrounding the use of StingRays for domestic surveillance is partly due to nondisclosure agreements signed by law enforcement agencies in exchange for the technology from Harris Corporation, the U.S. distributer of the European-developed device.

One such agreement, signed on Aug. 13, 2013, signed by the Milwaukee Police Department, details the process and requirements for acquiring “wireless collection equipment.” The agreement reads, “Consistent with the conditions on the equipment authorization to Harris Corporation by the FCC, state and local law enforcement agencies must coordinate with the FBI to complete this nondisclosure agreement prior to acquisition.”

The agreement maintains that revealing details about StingRays could adversely impact criminal and national security investigations, so “use shall be protected from potential compromise by precluding disclosure … in press releases, in court documents, during judicial hearings or during other public forums or proceedings.”

In other words: Don’t tell, even if asked.

In practice the agreement could prohibit police departments from requesting  warrants prior to conducting surveillance.

The ACLU, the ACLU of Wisconsin and the Electronic Frontier Foundation argue that law enforcement must obtain a warrant from a judge based on probable cause before using real-time cellphone location tracking. 

MILWAUKEE INCIDENT

A Milwaukee case provides an excellent example of alleged misuse of the technology.

Damian Patrick was arrested mid-day on Oct. 28, 2013, after two Milwaukee police officers found him in the passenger seat of a car with a gun at his feet.

But did the officers locate him legally?

That question is key to U.S. v. Patrick. The case before the 7th Circuit Court of Appeals in Chicago involves law enforcement’s alleged use of StingRay tracking technology to follow Patrick and the dispute over whether police need a probable-cause warrant to use such devices.

“Law enforcement must be required to get a warrant before accessing the vast amount of private information generated by cellphone location records,” said EFF senior attorney Adam Schwartz.

The ACLU/EFF brief says it appears that MPD used a StingRay to track Patrick’s phone, but concealed that use from Patrick’s defense and the courts. 

Prior to his arrest, Patrick had been under surveillanceby MPD and the FBI, according to court documents.  He’d been sitting in the passenger seat of a Chevy Malibu when he was located and then stopped by two MPD officers. They ordered Patrick and a driver out of the vehicle and recovered a semi-automatic gun from the area where Patrick had been seated.

Patrick was arrested on an outstanding warrant for violating probation and soon after was facing a federal charge for possessing the gun.

Police reports indicated the officers arrested Patrick because of an “unknown source,” but months later one arresting officer revealed that law enforcement was tracking Patrick’s phone.

A list of 579 MPD investigations involving the use of StingRays, which was obtained in a public records request, appears to include the Patrick case. 

Authorities, part of a task force working to find probation violators, had secured a judge’s order — but not a warrant —to get Patrick’s cellphone records from Sprint. Defense attorney Chris Donovan, in his appeal, said the order was not sufficient and Patrick’s arrest should be overturned, because the “fruits of this illegal search must be ordered suppressed, specifically the gun that was found laying at his feet when he was arrested.”

“This is the first time this federal appeals court, whose rulings affect Illinois, Wisconsin and Indiana, is considering whether citizens have an expectation of privacy in real-time cellphone location records,” said Jennifer Lynch, senior staff attorney with the EFF. “This case comes as we are seeing a groundswell of recognition that this information is private.”

Lynch said the Wisconsin and Indiana legislatures have prohibited warrantless real-time cell tracking, as do at least nine other states.

However, federal courts have issued conflicting rulings, which means the Patrick case or another federal dispute may take the issue to the U.S. Supreme Court.

WHO’S TRACKING AND WHY

The implications of law enforcement using military-grade surveillance technology are broad. Consider all that a cellphone reveals about a person’s whereabouts and routines: When a person leaves home. Where he goes. Who she meets. Using StingRays, the location data a cellphone sends can be collected by police.

In mid-February, the New York Civil Liberties Union secured documents through a freedom-of-information request revealing the New York Police Department used StingRays at least 1,016 times between 2008 and May 2015. NYPD used the technology without a written policy on procedure and following a practice of obtaining lower-court orders rather than warrants.

“Considering the NYPD’s troubling history of surveilling innocent people, it must at the very least establish strict privacy policies and obtain warrants prior to using intrusive equipment like StingRays,” said Donna Lieberman, NYCLU’s executive director.

ColorOfChange, a national civil rights group, has condemned police use of StingRay surveillance, maintaining the devices have been used to monitor protesters, especially activists in the Black Lives Matter movement.

ColorOfChange alleged the use of StingRays to monitor organizers of protests against the police killing of Eric Garner in New York City, as well as the movement of organizers in Ferguson, Missouri, after the police killing of Michael Brown. COC also charges the devices were used in Baltimore to monitor protesters after the death of Freddie Gray in police custody.

“We know all too well that unrestricted surveillance power gets disproportionately used against black communities,” said COC executive director Rashad Robinson.

Robinson said the FCC should use its authority “over StingRay devices to suspend the warrantless use of these devices and require all law enforcement agencies to certify their devices to provide detailed and public policies for their use.” 

Reach Lisa Neff at lmneff@www.wisconsingazette.com.