In the wake of multiple high-profile lawsuits and court battles over the use of surveillance technologies like stingrays, the United States Department of Justice has announced it will review how it uses multiple cell phone tracking technologies, as well as other means of mass surveillance. The FBI has reportedly begun using warrants in cases where it wanted to use stingray technology, after years of operating with impunity and failing to notify judges or defense attorneys that such techniques had been employed.
Stingrays, if you aren’t familiar with the phrase, are a class of devices that can force other cell phones in a geographic area to connect to themselves rather than a standard phone line. Stingrays operate by generating a stronger signal than other cell phone towers in more distant locations. This forces cell phones to connect to the stingray itself. Once this is done, the stingray can perform a variety of operations, including device tracking and active snooping on calls, data transmissions, and text messages.
The government’s declaration that it would review these policies comes only after an increasing number of cases have been dismissed. As we covered recently, local and state police offices have often signed agreements that require them to refuse to grant any information on the capabilities and functions of these devices. In some cases, prosecutors have chosen to drop court cases rather than be required to acknowledge the capabilities of stingray devices.
Of warrants and judicial oversight
The fact that prosecutors have been dropping cases rather than acknowledge using stingrays is actually great news if you care about long-term judicial oversight of these devices. Judges, as a rule, take a dim view of investigators that lie about the technological capabilities of their surveillance equipment when they apply for a warrant. They take an even dimmer view of law enforcement officials who flatly lie about how they obtained information. The more cases that are dismissed, the more stingrays become a liability — and police forces generally aren’t interested in using techniques or technologies that will result in a perp walking away without a trial.
Even cursory investigations have determined that local police forces have used these devices far more often than first thought. While depicted as tools for catching imminent dangers and terrorist threats, the Erie County police department has deployed stingrays 47 times without judicial approval, while Baltimore cops have reportedly used the devices more than 4,700 times since 2007. Baltimore, it must be noted, does not enjoy a particular reputation as a hotbed of terrorist activity — though the recent riots over Freddie Grey’s death have certainly exposed a culture of profound police abuse, including the practice of giving so-called “rough rides.”
The Justice Department’s decision to begin reviewing the rules and procedures for use of stingrays is a start. But it’s not going to solve the much larger institutional problems with how these devices are deployed. Judges need to be informed both when stingrays are used and what, exactly, stingrays can do. The evidence gathered by these devices needs to be submitted and attributed in a court of law. The Harris Corporation’s claim that it can prioritize the secrecy of its own hardware over and above the Fourth Amendment rights of American citizens — whether they’re accused of crimes or not — needs to be swept away by nothing less than a blanket dissolution of the NDA agreements that many local, state, and federal law enforcement agencies have reportedly signed.
According to the Wall Street Journal, the FBI hasn’t previously provided best practices training, One paragraph of the story is particularly troubling. “Officials said they don’t want to reveal so much that it gives criminals clues about how to defeat the devices. Law-enforcement officials also don’t want to reveal information that would give new ammunition to defense lawyers in prosecutions where warrants weren’t used, according to officials involved in the discussions.” [emphasis added]
So long as the prevailing attitude is “We don’t want to tell the American people about the ways in which we can spy on them,” the chances that this review will produce meaningful results is low. Hopefully we’ll see greater awareness of stingrays prompting more judges, defense attorneys, and local governments to attack the problem at every level.
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Justice Department to review use of stingrays, other surveillance equipment
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