Commentary

This Phone Hacking Device Is out of Control

The New York Times published a troubling article on March 16 detailing the secrecy surrounding police use of Stingray cellular site simulators.

The technological capabilities of law enforcement are getting far ahead of our mechanisms for oversight and accountability.

Essentially, these devices, which can be mounted on vehicles or carried by hand, mimic the signals of a cellphone tower to force cellphones in a given area to connect to the device. Both data on the phone (including numbers, texts, emails and any other data stored on the phone) and the phone’s physical location can then be accessed and recorded by police.

Additionally concerning is the extensive use of non-disclosure agreements by the Harris Corporation, which sells the devices, to prevent the public (and in some cases even judges, defense attorneys and prosecutors) from finding out how these devices are being used or even whether a given department owns any.

The preference for secrecy is so powerful that prosecutors have dropped serious criminal charges simply to avoid having the police use of Stingrays subjected to examination by defense attorneys or judges.

According to the Times,

The confidentiality has elevated the stakes in a longstanding debate about the public disclosure of government practices versus law enforcement’s desire to keep its methods confidential. While companies routinely require non-disclosure agreements for technical products, legal experts say these agreements raise questions and are unusual given the privacy and even constitutional issues at stake.

The stated reason for the secrecy is the common refrain that terrorists will circumvent the technology if they know what law enforcement is up to. However, a recent American Civil Liberties Union (ACLU) report was unable to uncover a single instance of these devices being used to bring domestic terrorists to justice in any jurisdiction surveyed.

The ACLU report estimates that Stingrays are in wide and rapidly increasing use in law enforcement agencies across America. However, there appears to be very little oversight structure for police departments, legislatures or courts governing the use of these devices. In some instances, it seems that courts have even been unwittingly authorizing their use without the judge’s full understanding.

For instance, a sampling of applications for court orders from Florida law enforcement agencies informs the judge that the order is for cellphone records but doesn’t mention anything about how they’re to be obtained. Police claim such vague orders authorize Stingray deployment, but some judges have been less than enthused upon finding out.

The problem is that the technological capabilities of law enforcement are getting far ahead of our mechanisms for oversight and accountability. From Edward Snowden’s National Security Agency revelations, to the Drug Enforcement Administration’s questionable use of automated license plate readers, to the use of automated social media trawlers to award citizens “threat scores,” to the use of cell site simulators that can access your phone without your permission, the government is plainly capable of mapping your every move and insinuating its eyes and ears into nearly every human interaction.

In the absence of Supreme Court involvement or robust 4th Amendment restoration efforts from legislatures, the burden falls on the public to demand increased transparency and accountability from local officials. Such efforts have met with success in the past, and must continue to do so if any sphere of American life is going to be spared the tentacles of the surveillance state.

Update: On March 17 a Supreme Court judge in New York ruled that the Erie County Sheriff’s Office’s use of Stingray technology is subject to disclosure under New York’s Freedom of Information Law (FOIL). The New York Civil Liberties Union sued to obtain records of Stingray use; Erie County refused the request, citing exemptions to FOIL as well as the non-disclosure agreement with the FBI.

The judge ruled that the non-disclosure agreement does not trump New York’s Freedom of Information Law, and additionally that the contents of the non-disclosure agreement itself are subject to disclosure. This is a big win for government transparency.

The ruling can be found here, and the NYCLU’s press release can be foundhere.

Adam Bates is a policy analyst with the Cato Institute’s Project on Criminal Justice.