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  October 12, 2016

Law Enforcement Might Be Sweeping Up Your Private Data Without a Warrant

Several US Senators wrote to the FCC Commissioner expressing concerns over the use of Stingray devices in communities of color and whether police are operating it lawfully
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Alan Butler is Senior Counsel at the Electronic Privacy Information Center (EPIC) in Washington, DC. In that capacity, Mr. Butler manages EPIC's appellate litigation, including the Amicus Program, and files briefs in emerging privacy and civil liberties cases before the U.S. Supreme Court and other appellate courts. Mr. Butler has argued on behalf of EPIC in privacy and open government cases. Most recently, Mr. Butler authored EPIC's brief in Riley v. California, which was cited in the Supreme Court's unanimous opinion upholding Fourth Amendment protections for cell phones.


KIM BROWN, TRNN: Welcome to The Real News Network, I’m Kim Brown in Baltimore.

Earlier this month, 12 senators signed a letter to the Chairman of the Federal Communications Commission, questioning the use of StingRays by law enforcement. In case you don’t know what a StingRay is, it is a cell phone site simulator and what it does is that it mimics cell phone towers, thereby allowing cell phones to communicate all kinds of information to it – such as location and other identifying data. The StingRay can also capture the information of anyone in proximity of the person whomever is being tracked. The senators expressed some concern that this technology is being used overwhelmingly in communities of color and asked the FCC commissioner whether the use of StingRays are a violation of the Communications Act.

Joining us to discuss this is Alan Butler. He is the senior counsel for the Electronic Privacy Information Center, or EPIC. Their organization tracks issues of the public interest related to the first amendment and to constitutional issues of privacy. Alan, thank you so much for joining us.

ALAN BUTLER: Thanks for having me.

BROWN: Alan, give us a little bit more background information of exactly what a StingRay is and what its capabilities are.

BUTLER: Sure, a StingRay is a device commonly referred to as a cell-site simulator, as you mentioned. It’s a device that mimics the qualities of a cellphone tower and by doing that it basically forces nearby cellphones and devices to register or release identifying information. And it essentially pings nearby phones and can gather a whole lot of data about those phones. It can gather identifying information, it can use these cellphone signals to triangulate precise location of devices. It can also be used, depending on how its configured, to actually intercept calls, to redirect calls, to block calls. It can really be used to do anything that a normal cellphone tower can do.

BROWN: And the interesting thing about StingRays is that their capabilities are both precise and very broad. So the way that law enforcement agencies use them is to, supposedly, be able to track suspects but they’re not just receiving the cellphone information of a particular suspect that they’re trying to catch. They’re also getting everyone’s information who is in proximity of this individual.

BUTLER: That’s right, there’s really 2 supposed use cases that StingRays by law enforcement that we’ve seen them put forward in some cases. One is to triangulate the precise location of a known device. So you have a device’s identifying information. You think you know where it is, you go to that place, you turn on the Stingray and it says, “the device is here.” And then by measuring the strength of the signal in several locations, you can precisely triangulate, within a few feet, where that device is. The other use is to take, essentially, an unknown device, and identify it by using a known location. For example, if you’re on the corner of 2 streets and you know that a suspect is there, you turn the StingRay on and you see what devices are in the area. And then you go to another known location and you know the suspect is there, you turn the StingRay on, you see what devices are in that area and then you cross-reference those lists of all the devices in those areas and you see which device was in both places.

In both cases, you’re collecting a whole lot of data about all devices around you. In the second case, you really are combing through all that data, looking at all the people that were at a particular location. You might imagine another situation where you wanna know everyone that was around a particular building, at a particular time. Could be people at a bank, people at a rally, if you turn the device on, you can really capture all of that identifying information.

BROWN: That’s incredible. So the way that this is being used, according to the ACLU, there are 68 law enforcement agencies that are known to be using this technology. However, the actual number is not known because many agencies don’t wanna disclose the surveillance tools that are available to them but we know that the Baltimore City Police have – at least had – use of the StingRay technology. They were admonished -- by the Maryland Court of Special Appeals, I believe, it was March of 2016 -- for failing to secure a warrant in order to use the StingRay information. Can you tell us more about that?

BUTLER: Sure, part of the reason that we don’t know how many State and local agencies are using these devices is because what my organization, EPIC, found that the Freedom of Information Act lawsuit against the FBI several years ago is that the FBI, which provides training and access to these devices was requiring local and State agencies to sign non-disclosure agreements in order to use them. And some of these State and local agencies believed that under the non-disclosure agreements, they should not inform the court that they were using these devices. So, its happened in Florida, we’ve seen this happen in Baltimore as well. So they agencies are basically not telling the courts that oversee their activities that they’re using all these devices and that they’re collecting all this data about not only a target but also innocent persons. The court really is admonishing them for 2 things. One, for not obtaining a warrant when they’re locating a target, in violating of the court’s view of the 4th Amendment rights of the target but also in not informing the court that they were using this technology that sweeps up all this private data. So they really have 2 fundamental problems with the way these are used by State and locals.

BROWN: One of the questions that the senators raised in their letter to Tom Wheeler, the Commissioner of the FCC, was does the Communications Act require that law enforcement agencies obtain licenses from the FCC to transmit over license spectrums and does it refrain them from causing harmful interference? That was one of the issues that they raised in their letter, was that, partially, the use of StingRays or related technology, could be interfering with people’s ability to try to solicit emergency services.

BUTLER: Right. So, the FCC, the Federal Communications Commission, regulates all radio communications in the country. Especially, radio communications that operate on the same wavelengths as cellphones and telephone signals. So, in order to operate a radio device, like a StingRay, you have to have a license. Usually, what happens with most consumer-end devices, is the licenses are attached to the devices. They are obtained by the companies. In this case, the company that manufactures StingRay, Harris, would have to have FCC licenses but in some cases, the users could have to have special licenses depending on how they use those devices.

The second problem you mentioned, the interference problem, goes to Section 333 of the Communications Act, which prohibits unlawful, willful interference with cellphone signals. This is sometimes referred to as jamming or blocking prohibition. The problem with StingRays is that they can block signals, so a StingRay acts like a fake cellphone tower. When a device connects to a StingRay, that device is no longer, at that moment, connected to the phone network. So, if at the moment when a StingRay is connecting with a phone, you need to call 911, you may not be able to get out and reach an emergency number. This has been a problem that the FCC has been vigorously enforcing, in other contexts, prohibiting the use of jammers or blockers by not only bad actors but also State and local governments, because there are police agencies, sometimes private, sometimes prisons. For example, in California, they’ve used cellphone jammers and the FCC has been pretty stringent on the use of those technologies. A similar claim here is brought against the use of StingRays.

BROWN: So it seems as if this technology, being used by law enforcement is in a bit of an island on its own. Where they may or may not go get a warrant to utilize this information against a specific target and unless a lawsuit is brought, like there was here in Maryland, you may not even know whether or not your jurisdiction has this technology and is using it.

BUTLER: That’s right. There’s been a lot of grass roots work across the country over the last 5 years. As I mentioned, EPIC went to the FBI to get information about their agency’s use of these technologies and found thousands of pages of documents over the last 10 years outlining the agency’s training of State and local’s interactions with agents across the country over the use of these devices but people have had to go State by State and use open government laws and also comb through state budgets to find where these devices have been purchased and used lawsuits and other methods to find out how they’re being used. Part of the problem is that the courts don’t even know when they’re being used because they agencies, in most cases are not disclosing that they’re using cell-site simulators.

BROWN: And lastly, Alan, the major concern, or at least the predominant concern that was raised by the senators is that this technology is being used predominantly in communities of color. Has EPIC or any other organization that you’re familiar with, have they found this to actually be the case?

BUTLER: The senators are referring to a specific complaint that was lodged with the FCC by a group this summer. There were a number of organizations that have done research in Baltimore specifically. The predominance of the use of StingRays, Baltimore has been held up as a particularly egregious example of State and locals. Thousands and thousands of uses of these devices without warrants and there’s evidence in that complain that this does predominantly impact communities of color and there’s a major concern. Not only that this will be used in specific criminal investigations but that it could be used during protests and other times where people are lawfully assembling, essentially, could create lists of people there by gathering identifying information.

BROWN: So have you noticed that these law enforcement agencies have we noticed an uptake in trying to secure warrants in order to use this or would we even know if this was happening or not happening?

BUTLER: Part of the problem is that warrants are not made public. That’s part of the process really. Warrants are obtained what you call ex parte, which means that the government goes to a judge behind closed doors to obtain a warrant before they perform a search. So we don’t get immediate statistics about how many warrants are obtained and part of the problem also is that there isn’t a special StingRay or cell simulator warrant at the moment. On the Federal level, we have annual reports about the use of wiretaps for example. Those are really useful. Because that way we can look back, year-to-year, historically and see how these authorities are being used. We need a similar provision on the use of StingRays on a state-by-state level. We really need a clear, transparency law that requires these agencies to track the number of times they’re using StingRay, to report the use, and basically to follow the lead of the Federal Wiretap reports and actually providing some transparency on how these devices are being used.

BROWN: We’ve been speaking with Alan Butler. He is the senior counsel for the Electronic Privacy Information Center. They track issues of the public interest related to the 1st Amendment and constitutional issues of privacy. Alan we certainly appreciate your time today, thank you.

BUTLER: Thank you.

BROWN: And thanks for checking out The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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