The sheriff in San Bernardino County—east of Los Angeles County—has deployed a stingray hundreds of times without a warrant, and under questionable judicial authority.
In response to a public records request, the San Bernardino Sheriff’s Department (SBSD) sent Ars, among other outlets, a rare example of a template for a “pen register and trap and trace order” application. (In the letter, county lawyers claimed this was a warrant application template, when it clearly is not.) The SBSD is the law enforcement agency for the entire county, the 12th-most populous county in the United States, and the fifth-most populous in California.
This template application, surprisingly, cites no legal authority on which to base its activities. The SBSD did not respond to Ars’ request for comment.
“This is astonishing because it suggests the absence of legal authorization (because if there were clear legal authorization you can bet the government would be citing it),” Fred Cate, a law professor at Indiana University, told Ars by e-mail.
“Alternatively, it might suggest that the government just doesn’t care about legal authorization. Either interpretation is profoundly troubling,” he said.
The documents sent to Ars by the SBSD’s county attorneys also show that since acquiring a stingray in late 2012, the agency has used it 303 times between January 1, 2014 and May 7, 2015.
“The template is likely to mislead judges who receive applications based on it because it gives no indication that the Sheriff’s Department intends to use a stingray,” he wrote by e-mail.
“We have seen similarly misleading applications submitted to judges by police departments across the country,” he continued. “Judges have no hope of ensuring that use of stingrays complies with the Fourth Amendment if they are kept in the dark about law enforcement’s intent to use a stingray. When police hide the ball from judges, our justice system cannot ensure justice.”
A detective’s court testimony Monday revealed that Baltimore law enforcement is spying on residents at an incredible rate without a warrant — and doing their best to hide it.
Detective Michael Dressel testified that Baltimore law enforcement have used “sting rays”–devices that can track personal cell phone data and location–without court orders, The Baltimore Sun reports. Police said they have used sting rays 4,300 more than times since 2007.
“This is scandalous,” Tim Lynch, the Cato Institute’s Director for the Project on Criminal Justice, told The Daily Caller News Foundation. “Police agencies have misled the public about how the stingray devices have been used and how often. We need to find out what has been happening in other cities around the country. FBI officials and police chiefs need to come clean about this.”
The NYCLU says documents show the sheriff’s office has a confidentiality agreement with the FBI that allows it to maintain almost total secrecy over the records for this device, including that the FBI can request the sheriff’s office dismiss criminal prosecutions rather than risk compromising the secrecy of how the Stingray is used.]
“Stingrays are an advanced surveillance technology that can sweep up very private information, including information on innocent people,” said NYCLU Western Region Director John Curr III. “If the FBI can command the Sheriff’s Office to dismiss criminal cases to protect its secret stingrays, it is not clear how the $350,000 we are spending on stingray equipment is keeping the people of Buffalo safer.”
Update: NYT catches up on Stingray
A powerful new surveillance tool being adopted by police departments across the country comes with an unusual requirement: To buy it, law enforcement officials must sign a nondisclosure agreement preventing them from saying almost anything about the technology.
Any disclosure about the technology, which tracks cellphones and is often called StingRay, could allow criminals and terrorists to circumvent it, the F.B.I. has said in an affidavit. But the tool is adopted in such secrecy that communities are not always sure what they are buying or whether the technology could raise serious privacy concerns.
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 nondisclosure agreements for technical products, legal experts say these agreements raise questions and are unusual given the privacy and even constitutional issues at stake.
Update: WaPost wakes up on Stingray
The Tallahassee police have used the StingRay or a similar device in 250 investigations over a six-year period from mid-2007 through early 2014, according to a list of cases compiled by the Tallahassee Police Department and provided to the American Civil Liberties Union.
That’s 40 or so instances a year in a city of 290,000, a surprisingly high rate given that the StingRay’s manufacturer, Harris Corp., has told the Federal Communications Commission that the device is used only in emergencies. At least 48 state and local law enforcement agencies in 20 states and the District of Columbia have bought the devices, according to the ACLU.
The secrecy surrounding the device’s use has begun to prompt a backlash in cities across the country. In Baltimore, a judge is pushing back against the refusal of police to answer questions while testifying. In Charlotte, N.C., following a newspaper investigation, the state’s attorney is reviewing whether prosecutors illegally withheld information about the device’s use from defendants.
In Tacoma, Wash., after a separate newspaper investigation found that judges in almost 200 cases had no idea they were issuing orders for the StingRay, the court set new rules requiring police to disclose the tool’s use. The state legislature is weighing a bill to regulate police use of the equipment.
The bureau’s position on Americans’ privacy isn’t surprising. The Obama Administration has repeatedly maintained that the public has no privacy in public places. It began making that argument as early as 2010, when it told a federal appeals court that the authorities should be allowed to affix GPS devices on vehicles and track a suspect’s every move without court authorization. The Supreme Court, however, eventually ruled that warrants are required. What’s more, the administration has argued that placing a webcam with pan-and-zoom capabilities on a utility pole to spy on a suspect at his or her residence was no different from a police officer’s observation from the public right-of-way. A federal judge last month disagreed with the government’s position, tossing evidence gathered by the webcam that was operated from afar.
In their letter, Leahy and Grassley complained that little is known about how stingrays, also known as ISMI catchers, are used by law enforcement agencies. The Harris Corp., a maker of the devices from Florida, includes non-disclosure clauses with buyers. Baltimore authorities cited a non-disclosure agreement to a judge in November as their grounds for refusing to say how they tracked a suspect’s mobile phone. They eventually dropped charges rather than disclose their techniques. Further, sometimes the authorities simply lie to judges about their use or undertake other underhanded methods to prevent the public from knowing that the cell-site simulators are being used.