Tenth Amendment Center – by Kelli Sladick
ROCHESTER, N.Y. (June 2, 2016) – Two local New York law enforcement agencies spent over $550,000 purchasing and maintaining stingray devices to track the location of phones and sweep up electronic communications. Documents obtained by the ACLU reveal the departments went to great lengths to hide the existence of the devices and rarely obtain court orders for their use.
Harris Corporation along with the FBI gagged local and state police departments in New York from releasing information regarding cell-site simulators. These are more commonly known as Stingrays, but come in a variety of models such as KingFish and AmberJack. All devices are made by Harris Corporation.
When the New York Civil Liberties Union(NYCLU) tried to obtain documents relating to stingray technology, upstate New York police departments refused to release any documents relating to the purchase of these devices under the New York State Freedom of Information Law (FOIL). The FBI/Harris Corporation non-disclosure agreement and the FOIL refusal key points match almost verbatim.
In order to obtain these documents, the NYCLU successfully sued the Erie County Sheriff’s. The Rochester Police Department also released information after the successful suit.
“These records confirm some of the very worst fears about local law enforcement’s use of this expensive and intrusive surveillance equipment,” NYCLU Staff Attorney Mariko Hirose said.
According to the NYCLU, Rochester PD used a cell-site simulator 13 times from January 2012 to May 2015. The department only obtained a probable cause warrant six times. It appears that the RPD’s stingray unit attaches to a department vehicle and can be used to identify and track a cell phone on the move.
“Even though StingRays are military-grade technology often touted as a counterterrorism tool, grant documents show that the Rochester Police Department obtained the StingRay technology to perform everyday law enforcement activity, such as keeping track of people they thought might be in gangs,” the NYCLU reported.
Documents indicate the funding primarily came from state grants. It remains unclear if the state money flowed from the federal government.
The Erie County Sheriff Department paid $350,000 for its two stingrays and used them 47 times over a four-year period. The department obtained a court order only once. The sheriff’s department not only deployed the devices for its own investigations, it also utilized them on behalf of other law enforcement agencies.
The information obtained by the ACLU and media organizations underscore the need to place strict limits on the use of these devices.
A FEDERAL PROGRAM
While it appears the RPD utilized state grants to purchase its stingray devise, the federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. 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 last fall, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases. The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.