Tenth Amendment Center – by Michael Maharrey
Civil asset forfeiture is a pernicious policy in its own right. It is nothing more than legalized, institutionalized, government-sanctioned theft. Forfeiture laws flip due process on its head and create perverse “policing for profit” incentives. It’s bad enough that police can take people’s stuff, oftentimes without even charging them with a crime. But the damage done by this insidious policy is magnified when police use asset forfeiture money to fund the ever-growing surveillance state.
Such was the case in Boston.
In 2019, the Boston Police Department bought a cell-site simulator with a price tag of $627,000. But the BPD didn’t have money in its budget for such an expenditure. It paid for the invasive and controversial surveillance tech with asset forfeiture money.
Commonly known as “stingrays,” cell-site simulators essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
The feds require agencies acquiring the technology to sign non-disclosure agreements (NDA). This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
In Massachusetts, police chiefs have almost complete discretion over they spend forfeiture money. This means they can use the funds to keep purchases out of the public eye. According to ProPublica, the Boston City Council typically “scrutinizes” proposed spending by the police department. But because it bought the stingray using forfeiture funds, the BPD was “able to circumvent the council.”
If it weren’t for WBUR sifting through hundreds of documents obtained through an open records request, nobody would even know the Boston Police Department has a stingray.
This was the second cell-site simulator purchased by the BPD. It bought its first stingray in 2013. According to ProPublica, the department used budgeted money for the first stingray, but information on its use has been mostly redacted.
During a subsequent hearing on the matter, Bureau Chief for Investigative Services Felipe Colon said the department has deployed a cell-site simulator 106 times over the last six years. Thirty-six of those deployments were without a warrant.
Moving forward, it will be more difficult for Boston police to purchase invasive surveillance technology in secret. In November 2021, the Boston City Council passed an ordinance requiring the Boston Police Department will have to get council approval before acquiring or using new surveillance technology. It will also have to get approval before using existing technology in a new way.
But most local governments have no such oversight. It’s almost certain that other local police departments are using asset forfeiture money to secretly buy surveillance technology.