Daniel Denvir is a Rhode Island-based contributing writer to CityLab and a former staff reporter at Philadelphia City Paper.
The technology is being deployed in secret by departments across the country, according to a recent investigative report.
The storm trooper-level police response to protests in Ferguson last summer shocked many observers, and put a federal program that distributes surplus military weapons and equipment to local law enforcement under heavy scrutiny. But the creep of War on Terror technology into domestic police surveillance tactics, and the Orwellian legal bases upon which it stands, has been more subtle.
One little understood tool is known as "stingray," a device that can locate a phone's location by posing as a cell tower. The system is good at tracking down criminal suspects but also intercepts the location of people who happen to be in the area.
In Baltimore, police are secretly employing the devices with great frequency to track down not only suspected murderers but small-time crooks, according to an important USA Today investigation published Monday. The upshot is that police nationwide have "quietly transformed a form of surveillance billed as a tool to hunt terrorists and kidnappers into a staple of everyday policing."
“The problem is you can’t have it both ways. You can’t have it be some super-secret national security terrorist finder and then use it to solve petty crimes,” Electronic Frontier Foundation lawyer Hanni Fakhoury told the paper.
Dozens of police departments own such devices, according to USA Today, which it has reported were first created for military and spy agencies. But "when and how the police have used those devices is mostly a mystery, in part because the FBI swore them to secrecy," according to the paper. In Baltimore, investigative reporter Brad Heath compared a police surveillance log he obtained to court files, and found that police often "hid or obscured that surveillance once suspects got to court and that many of those they arrested were never prosecuted."
That secrecy has contributed to a disturbing lack of judicial review of stingray. In many cases, police are not securing search warrants before deploying the technology, and they don't even reveal that they have used it in court, depriving defense lawyers of their ability to argue that evidence was illegally obtained—a key Fourth Amendment safeguard.
Spy first, ask judges later.
“We can’t challenge it if we don’t know about it, that’s sort of the horror of it,” Baltimore public defender David Walsh-Little told USA Today.
Ironically, the secrecy is also causing cases to be tossed. Prosecutors, citing the non-disclosure agreement, have agreed to forgo evidence so as to avoid being forced to reveal that stingray was involved. The FBI has claimed that disclosing information on stingray could allow suspects to evade the technology—without explaining why stingray's very use must be hidden from judges and defendants in court.
So far, there has been little legal scrutiny and, given the judiciary's light-touch approach to the national security state, it's easy to be pessimistic. But the U.S. Supreme Court has evidenced an inclination toward reining in law enforcement's opportunistic use of surveillance made possible by the widespread adoption of mobile digital technology—at least when it comes to exclusively domestic policing.
In 2012, the court ruled in United States v. Jones that placing a GPS device on a suspect's car, and then using that device to track the subject, did indeed constitute a search—but stopped short of clarifying whether such a search required a warrant and whether, independently, either the placing of the device or the ensuing tracking are warrant-necessitating searches. In a 2014 case, the court ruled that police must almost always obtain a warrant before searching an arrestee's cell phone, and that its locational data was one reason why.
"Data on a cell phone can also reveal where a person has been," the court ruled in Riley v. California. "Historic location information is a standard feature on many smart phones and can reconstruct someone's specific movements down to the minute, not only around town but also within a particular building."
Key to determining stingray's legal future will be the Supreme Court's interpretation of the "third-party doctrine." That doctrine holds that people have no reasonable expectation of privacy over information voluntarily disclosed to a third party, and it has been used to uphold NSA dragnet metadata collection, as this 2014 Ars Technica piece explains.
The handful of federal court rulings on stingray have not "really tackled the constitutionality of them or the legal standards that apply to using them," emails Hanni Fakhoury, senior staff attorney at the Electronic Frontier Foundation. "There are, however, quite a few court rulings on law enforcement getting cell site location records directly from a cell phone service provider and those decisions have reached conflicting conclusions. Some courts have said a warrant is necessary; others have said a warrant is not needed. Any court that says a warrant is needed to obtain cell phone location records would likely apply to a stingray too."
What Fakhoury is referring to is federal circuit court rulings on law enforcement obtaining cell-site location information, or CSLI, from mobile phone service providers. They have arrived at different conclusions. That makes the question ripe for Supreme Court review, and the outcome of such a case would likely cover stingray.
"If the Fourth Amendment requires law enforcement get a warrant to get cell phone location records from the service provider, then they would certainly need a warrant to operate the device and get the records directly," emails Fakhoury.
The stingray devices, USA Today reports, do not pick up the content of phone conversations. This is a point that will likely be raised, if it hasn't been already, by the program's defenders when and if it is subject to heavier scrutiny. That's also, of course, the argument put forth by defenders of the National Security Agency's mass collection of phone metadata, defended on the grounds, as President Obama put it, that "Nobody is listening to your telephone calls."
Metadata may not be the content of calls. But its collection can reveal a lot about the content of your life. And it is unclear, says Fakhoury, what police do with the locational information on bystanders that stingray picks up.
Stingray is not the only military-intelligence-type technology quietly seeping into domestic policing. Facial recognition technology, which can effectively turn your face into a unique barcode to be scanned by police, is rapidly expanding with little apparent oversight, according to a recent New York Times story. The Drug Enforcement Administration, as USA Today described in April, has "amassed logs of virtually all telephone calls from the USA to as many as 116 countries linked to drug trafficking." That program, little discussed in the numbing wake of the Edward Snowden revelations, began "nearly a decade before the Sept. 11 terrorist attacks, harvesting billions of calls in a program that provided a blueprint for the far broader National Security Agency surveillance that followed." And there is also Hemisphere, an NSA-style phone metadata program used by domestic law enforcement.
The debate over these cloak-and-dagger snooping technologies making their Main Street America debut remains constrained by government-imposed secrecy. But you'll no doubt be hearing more about them—maybe, even, the next time you end up in court.