The 7th Circuit federal appellate court will become the first federal appeals court to examine the Fourth Amendment issues related to cell phone surveillance tools known as cell-site simulators or stingrays. The 2013 case, known as United States v. Patrick, involves Milwaukee resident Damian Patrick, his arrest for a probation violation, and the likelihood that the police illegally used a stingray to locate him.
Truth In Media has written extensively about how these devices are being used to track suspected criminals while largely operating without oversight from local, state, or federal authorities. Exactly how the devices operate and what data they collect and/or save has been unknown because of a vast amount of secrecy surrounding the tools.
The Electronic Frontier Foundation describes the Stingray as “a brand name of an IMSI (International Mobile Subscriber Identity) Catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cellphone tower – to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not – and tricks your phone into connecting to it.”
On October 28, 2013, Damian Patrick was arrested while sitting in the passenger seat of a rented white Chevy Malibu in northern Milwaukee. A police report indicates that two Milwaukee Police Department (MPD) officers stopped the vehicle and ordered Damian Patrick and the driver to exit. The officers noticed a gun on the floor of Patrick’s seat and arrested him for an arrest warrant for probation violation.
Patrick was unaware he was being monitored by local police as well as the FBI. Since that time, questions have arose regarding how exactly the police knew Patrick’s location. Ars Technica writes:
“How did the Milwaukee Police Department and the FBI magically descend upon Patrick’s location? The arrest reports are vague, making references only to an ‘unknown source’ and ‘prior knowledge.’ The report says, ‘We [police] obtained information‘ to the fact that Patrick, wanted on a felony probation violation, happened to be in that parking spot.
Less than a month later, Patrick faced one count in violation of federal gun laws. His lawyer filed a motion to suppress the ‘unlawful seizure’ on the grounds that nothing in the tip “was predictive”—the officers couldn’t have known that there was a reasonable suspicion to seize Patrick.”
Patrick caught a break in 2014 when one of the arresting officers, Phillip Ferguson, revealed that a “law enforcement officer” was “tracking” his phone. While court records indicate that the MPD asked the court for a pen register or trap and trace order for Patrick’s phone, it is likely that the MPD and/or the FBI used a stingray to grab the data out of the air.
The use of pen register or trap and trace orders with stingray technology has created a situation where many judges end up approving of technology that they do not quite understand. Law enforcement often seek approval of cell site simulators using outdated pen register, trap and trace orders without fully explaining to the judge the capabilities of the technology.
Patrick’s attorney, Chris Donovan, filed his opening brief in the appeal earlier this month asking the court to overturn the arrest based on violation of Patrick’s Fourth Amendment protections. Since the court did not have a warrant to use a cell site simulator “fruits of this illegal search must be ordered suppressed, specifically that the gun that was found laying at his feet when he was arrested,” Donovan wrote.
The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed an amicus brief in support of Damian Patrick. The ACLU and EFF also note that Wisconsin passed a 2014 state law which requires warrants for stingray technology.
The case is a prime example of the growing dangers of technology in the hands of government with little to no oversight. Despite promises that the tools would only be used in emergency situations, the surveillance devices are becoming increasingly normalized.
As EFF attorney Jennifer Lynch noted, “It looks like the police are using stingrays for pretty minor crimes— crimes that run the gamut.”
Speaking from the Senate floor, Senator Bill Nelson of Florida discussed how the technology “poses a grave threat to consumers’ cellphone and Internet privacy.” Nelson sent a letter to FCC Chairman Tom Wheeler, asking why the company behind the StingRay has been able to secure special restrictions on who has access to details of the devices.
[pull_quote_center]It’s time for us to stand up for the individual citizen of this country and their right to privacy. – Senator Nelson[/pull_quote_center]
“The Stingray is a brand name of an IMSI (International Mobile Subscriber Identity) catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cell phone tower—to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not— and tricks your phone into connecting to it. As a result, the government can figure out who, when and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations.”
Police officers can use the devices to track your cellphone’s signal. Once the signal is located the stingray can provide a general location on the map and police officers can drive around (or in one case, walk door to door) until they get a signal from your phone. This has civil liberties advocates up in arms over the potential for misuse of the tools.
Senator Nelson is seeking answers on whether or not the FCC sought oversight to make sure the devices are being used in the way Harris Corp, the manufacturer of the devices, claimed they would. The Senator also asked for an update from a “task force” formed by the FCC that was supposed to look into the many questions surrounding the use of StingRays and similar devices.
[pull_quote_center]When this device is turned over to local law enforcement, are they being adequately trained on…judicial protections?[/pull_quote_center]
Senator Nelson is the first to discuss the technology on the Senate floor but not the first Senator to seek answers on how the devices are being used. In early January leaders of the Senate Judiciary Committee announced that they were seeking details from the Obama administration regarding federal law enforcement’s use of cell phone surveillance technology. In a bi-partisan letter to the Departments of Justice and Homeland Security, Senators Patrick Leahy and Chuck Grassley requested more information about a recent policy change by the FBI regarding how surveillance equipment is used.
Secrecy Around Stingrays
Although the technology has been growing in use, the public’s knowledge has not increased. A heavy veil of secrecy exists between the FBI, the FCC, and Harris Corp. While a small number of journalists and privacy advocates have been researching and filing open records requests, the authorities have continued to stonewall all requests, ensuring that very little information is released to the public.
The Electronic Frontier Foundation (EFF) released a report detailing how law enforcement agencies around the United States are actively working to keep the public in the dark about the use of Stingray cellphone surveillance technology. The EFF reviewed a year’s worth of public record requests from various media organizations, and court records related to the government’s use of the tools also known as cell site simulators. The advocacy organization said they were “not just worried about how invasive these devices can be, but also that the government has been less than forthright with judges about how and when they use” stingrays.
In September, the American Civil Liberties Union asked the Federal Communications Commission to investigate the maker of the Stingray for allegedly misrepresenting information regarding data collection capabilities. According to documents obtained during a Freedom of Information Request by the ACLU of Northern California, Florida-based Harris Corporation misled the FCC about the frequency of use for the Stingray.
In an email from June 24, 2010, an employee with Harris told the FCC that the devices (Stingfish in this case) “purpose is only to provide state/local law enforcement officials with authority to utilize this equipment in emergency situations.” However, the ACLU reports, “records released by the Tallahassee, Florida, Police Department explain that in nearly 200 cases since 2007 where the department used a StingRay, only 29 percent involved emergencies; most of the rest involved criminal investigations in which there was ample time to seek some sort of authorization from a judge.”
There has also been at least once instance where the FBI stepped in to demand that local police departments notify the federal agency when open records requests are filed in relation to the technology. Documents released to the Minnesota Star Tribune show that the state’s Bureau of Criminal Apprehension (BCA) agreed to “immediately notify the FBI” if information was requested via Freedom of Information Act (FOIA), or other information requests. The 2012 contract shows that Assistant BCA Superintendent David Bjerga agreed the agency “will immediately be provided to the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise.”
In an incredible exercise over federal authority, the US Marshals intervened in a public records request to the Sarasota Police Department. The ACLU of Florida was seeking information on the technology when they received a letter claiming that the records were now the Marshals and could not be released.
Even courts have been unwilling or unable to force the release of information. In December a judge in Arizona ruled that the state’s public records law do not require the Tucson Police Department (TPD) to release records related to stingrays, or cell-site simulators.
Another point of contention is the use of non-disclosure agreements by Harris Corp. The corporation and police departments around the nation have been criticized for signing the agreements which allow them to keep quiet on the devices. Local police departments have become subordinate to Harris and, even in court cases in front of a judge, are not allowed to speak on the details of their arrangements.
We do know that the technology has made it into the hands of at least 47 agencies in 19 states, according to the ACLU. At least 12 federal agencies are known to use the devices. (Check out this helpful map to find out if your state has them.)
The Houston Police Department has received attention recently after multiple reports (here and here) on the departments use of the tools. The HPD has been using some form of surveillance hardware since at least 2007, according to records obtained by Truthout. However, much like other cities, when HPD Chief Charles McClelland is questioned on Stingrays he refuses to confirm or deny their existence, yet expects the public to accept this reassurances that the department takes proper constitutional protections when using surveillance technology.
There has been some resistance to the secrecy, however. At least one judge has now begun requiring law enforcement agencies to specifically ask for permission when using the technology. The Tacoma News Tribunereports that Pierce County’s 22 Superior Court judges “now require language in pen register applications that spells out police intend to use the device.” Police departments have also begun requesting updated equipment that will upgrade “the Stingray system to track 4G LTE Phones”, as AT&T and other cellular providers prepare to shutdown their 2G networks.
Just last month the Charlotte-Mecklenburg Police Department announced that they would reveal details on how they are using the tools. The news came after an investigation by The Charlotte Observer and pressure from defense attorneys and privacy advocates who feared the police were unfairly targeting innocent bystanders with the technology. The CMPD will also make changes to its program, including disclosing to judges exactly how they track cellphones and allowing those accused of crimes to learn if police used a stingray to arrest them. The Mecklenburg County District Attorney’s Office will also be releasing the results of a review of hundreds of criminal cases.
Just last week the ACLU in Florida released damning evidence showing that Florida law enforcement agencies have been granting themselves authorization without first getting a warrant based on probable cause. When the departments do pursue a warrant through a judge, they often do not specifically mention the Stingray, or cell site simulator, but rather use vague and generic terms. The Florida Department of Law Enforcement has spent more than $3 million on Stingrays since 2008.
Until Americans are properly informed on the existence of cell site simulators, how the technology works, and in what capacity law enforcement are using the tools, we cannot have an informed discussion on the legality of such surveillance. At this point it is imperative that free minds around the country investigate and expose agencies that refuse to honor their constitutional oaths, and commitment to the public. Only from a place of awareness can we empower ourselves and those in our communities.