Law enforcement agencies around the country can track and monitor telecommunications thanks to an FCC-approved device.
In the last year, Americans have become more and more aware of the scope and prevalence of tracking technology. From Snowden’s revelations about the National Security Agency to privacy breaches, the fact that the government and law enforcement agents can track people’s movement and data has ignited a debate about just how much privacy people are willing to give up in the name of law and order. Recently a new piece of technology used by police departments has come into focus: the Stingray.
The Stingray is a briefcase-size device manufactured by Florida-based telecommunications company Harris Corporation. The purpose of the Stingray is to imitate a cell-phone tower—forcing all nearby phones to attempt to connect with it. When phones do try to connect, the Stingray logs the information on that phone, everything from location information to the metadata that reveals what phone numbers you've been been texting and calling.
The Stingray was invented for use by the military, but recently local law-enforcement groups have started using the device—a controversial move, and one that may not even be legal, according to a recent report by the American Civil Liberties Union.
By law, Harris Corporation is required to apply for a permit to sell Stingray devices to law enforcement agencies with each new incarnation of this technology. And acccording to the ACLU’s investigation, the application the Federal Communications Commission accepted from the Harris Corporation— the one that allows them to sell the Stingray to police departments—may have contained seriously misleading language describing how the device would be used.
In an email from 2010, a Harris employee told the FCC their application to sell these devices to police departments was only to “provide state/local law enforcement officials with authority to utilize this equipment in emergency situations,” the ACLU discovered. But that doesn’t seem to be what’s actually happening. In fact, there is substantial evidence the police departments that have obtained the Stingray device used it for anything but emergency situations.
“There has been plenty of experience already with how law enforcement was using versions of this technology,” Nathan Freed Wessler, staff attorney with the ACLU's Speech, Privacy, and Technology Project, told me. In a letter to the FCC, the ACLU lays out a number of examples in which earlier versions of this technology have been in use by police departments around the country since as early as 2001. In Tallahassee, Florida, for example, the police department has used the Stingray well over 200 times since 2007 to investigate crimes like muggings and robberies. Less than a third of those reported cases involved an actual emergency, according to documents they’ve received.
In fact, the Miami-Dade police department wrote in a 2004 memorandum that earlier versions of the Stingray they had used proved to be an “invaluable tool” for the prevention of crime and the apprehension of criminals. “It's difficult to see how they would be able to prevent crime with one of these devices without sweeping in private information from large numbers of private and innocent individuals,” Wessler said. Police officers reportedly brought a Stingray to a Free Trade of the Americas conference in Miami to surveil protesters and hopefully learn of impending crimes before they were committed. In other words, the police used the device to spy on people practicing their First Amendment rights, Wessler said.
Police departments have argued that they cannot release information about their use of the Stingray for fear it would compromise national security investigations. According to Wessler, departments typically use grants from the Department of Homeland Security to obtain the device. But he noted that “it would be hard for them to use [national security] arguments in actual individual cases or examples of their use of this technology with a straight face.” In the case of Tallahassee, for example, none of the investigations involved national security issues.
Police departments have also been known to refuse to provide information about their use of the Stingray when journalists or organizations file Freedom of Information Act requests to learn about them because of a non-disclosure agreement the Harris Corporation forces them to sign. This stands in stark opposition to the Freedom of Information Act requests, which are supposed to be followed by the police whenever reasonably possible. Following such a non-disclosure agreement sends a clear message that police departments give more credence to the whims of a corporation than the requirements of the law. In Arizona, the ACLU filed a lawsuit against the Tucson Police Department over their refusal to disclose information about the Stingray. “State law should trump this agreement,” Dan Pochoda, legal director for the ACLU of Arizona, told the Tuscon Sentinel in March. “If they’re allowed to do this, it would eviscerate state law.”
You might think we can't blame the police departments for using the device as they see fit, because the application to the FCC was sent by the Harris Corporation, not the police. But according to the ACLU, many of these police departments knew the application was pending and sent letters to the FCC requesting they accept the application. “There would have been dialogue back and forth between Harris and local law enforcement that would have given Harris ample opportunity to know how these [Stingray devices] were already being used,” Wessler said. The police departments knew they were waiting on this application, and whether they knew the specific language of the application or not, there was certainly communication between the police and Harris that would have established for some of the people involved that the language was not accurate, as we can see from the emails the ACLU surfaced.
Regardless of the language used to justify the sale of the device to police departments, there might be other reasons to question the use of the Stingray device in general. “Even if law enforcement is tracking one particular suspect, they're capturing location information and identifying information of dozens, hundreds or even thousands of completely innocent bystanders, and that looks a whole lot like a dragnet search—the kind of general warrant the founders and the framers of the Fourth Amendment were trying to prevent.” The Fourth Amendment protects Americans from unreasonable search and seizure—if the police can search and seize information from your phone, even if you're a suspect of absolutely no crimes, then it's a violation of your constitutional rights.
The FCC has set up a task force to look into the unlawful use of the Stingray, but they're only looking to see if it has been used by foreign spies or domestic criminals. Their main objective is to find out if stalkers are using it to monitor citizens or if foreign governments are monitoring Congress or embassies in Washington, D.C.
The ACLU, on the other hand, wants to know if local police departments are using Stingrays to monitor citizens in a way that they feel should not be allowed. “At the very least, the FCC should be reevaluating these grants of authority to Harris to make sure that they're actually appropriate, in light of the actual effect,” Wessler told me. If the FCC investigated this possibility and found they were mislead in how the Stingray would be used by police, they could revoke the authorization for police departments using such technology.
Whether it be the crimes against minorities committed by police departments, the unprecedented militarization of the police in the past decade or the police acting as appendages of the NSA, it's becoming clear that policies of police forces in the United States are broken. The ACLU and human rights groups around the country are pleading for more information on what these authorities are doing in their day-to-day work, but they are forced to file information requests that only result in being given parts of the greater picture. Instead of a few emails between Harris and the FCC, the ACLU wants a copy of the actual application that was sent. But for now, they are limited to what the government is willing to give them—a string of emails between Harris employees and the FCC regulators who reviewed Harris's application. And from what they can tell based on those emails, today’s use of Stingrays lies in sharp contrast with how they were approved.