Derrick Broze

March 17, 2015

(ANTIMEDIA) A New York Supreme Court judge has ruled that the Erie County Sheriff’s Office must comply with public records requests for “StingRay” cellphone surveillance.

The American Civil Liberties Union of New York sued the Sheriff’s Office after the department failed to respond to requests regarding how the devices are used. Justice Patrick NeMoyer sided with the NYCLU and ruled that the Sheriff’s office must hand over the data. NYCLU Staff Attorney Mariko Hirose said the decision “confirmed that law enforcement cannot hide behind a shroud of secrecy while it is invading the privacy of those it has sworn to protect and serve.”

According to the Electronic Frontier Foundation:

“The Stingray is a brand name of an IMSI (International Mobile Subscriber Identity) catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cell phone tower—to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not— and tricks your phone into connecting to it. As a result, the government can figure out who, when and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations.”

Police officers can use the devices to track your cellphone signal. Once the signal is located the stingray can provide a general location on the map and police officers can drive around (or in one case, walk door to door) until they get a signal from your phone. Police departments have also begun requesting updated equipment that will upgrade “the Stingray system to track 4G LTE Phones”, as AT&T and other cellular providers prepare to shutdown their 2G networks. This has civil liberties advocates up in arms over the potential for misuse of the tools.

The NYCLU filed suit after the Sheriff’s office refused to comply with Freedom of Information requests which sought more information on how the devices work. John A. Curr III, director of the NYCLU’s Western Regional Office, said the Sheriff’s office was attempting to “prevent the release of information about how it uses stingrays against its own residents.”

“But this is not Iraq or Afghanistan – this is Buffalo. And we have a right to know what the Sheriff is doing to us in the name of keeping us safe.” – John A. Curr III, director of the NYCLU’s Western Regional Office

The judge did not set a deadline for the Sheriff’s Office to release the documents.

Secrecy around the technology has created a growing resistance. At least one court has now begun requiring law enforcement agencies to specifically ask for permission when using the technology. The Tacoma News Tribune reports that Pierce County’s 22 Superior Court judges “now require language in pen register applications that spells out police intend to use the device.”

Just last month the Charlotte-Mecklenburg Police Department announced that they would reveal details on how they are using the tools. The news came after an investigation by The Charlotte Observer and pressure from defense attorneys and privacy advocates who feared the police were unfairly targeting innocent bystanders with the technology. The CMPD will also make changes to its program, including disclosing to judges exactly how they track cellphones and allowing those accused of crimes to learn if police used a stingray to arrest them. The Mecklenburg County District Attorney’s Office will also be releasing the results of a review of hundreds of criminal cases.

Recently the ACLU in Florida released damning evidence showing that Florida law enforcement agencies have been granting themselves authorization without first getting a warrant based on probable cause. When the departments do pursue a warrant through a judge, they often do not specifically mention the Stingray, or cell site simulator, but rather use vague and generic terms. The Florida Department of Law Enforcement has spent more than $3 million on Stingrays since 2008.

Within those documents was an application for a warrant, in which FBI Special Agent Michael A. Scimeca admitted that the devices have the potential to “intermittently disrupt cellular service to a small fraction” of wireless customers in the immediate area. The surveillance device forces phones to downgrade from 3G and 4G network to the less secure 2G network to intercept data being sent from the phones to cellular towers. This can cause a disruption in internet service and the ability to make and receive calls for a brief period of time.

The Washington state House of Representatives also passed a new set of bills to protect individual privacy against StingRay cellphone surveillance and drone aircraft. One bill would make it a state misdemeanor for a private citizen to use a drone to spy on another person. It would require specific legislative permission for police to buy new drones.

Despite the resistance the federal government and police departments continue to operate behind a veil of secrecy. The Electronic Frontier Foundation (EFF) released a report detailing how law enforcement agencies around the United States are actively working to keep the public in the dark about the use of Stingray cellphone surveillance technology. The EFF reviewed a year’s worth of public record requests from various media organizations, and court records related to the government’s use of the tools also known as cell site simulators. The advocacy organization said they were “not just worried about how invasive these devices can be, but also that the government has been less than forthright with judges about how and when they use” stingrays.

There has also been at least once instance where the FBI stepped in to demand that local police departments notify the federal agency when open records requests are filed in relation to the technology. Documents released to the Minnesota Star Tribune show that the state’s Bureau of Criminal Apprehension (BCA) agreed to “immediately notify the FBI” if information was requested via Freedom of Information Act (FOIA), or other information requests. The 2012 contract shows that Assistant BCA Superintendent David Bjerga agreed the agency “will immediately be provided to the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise.”

In an incredible exercise over federal authority, the US Marshals intervened in a public records request to the Sarasota Police Department. The ACLU of Florida was seeking information on the technology when they received a letter claiming that the records were now the Marshals and could not be released.

Even courts have been unwilling or unable to force the release of information. In December a judge in Arizona ruled that the state’s public records law do not require the Tucson Police Department (TPD) to release records related to cell-site simulators.

In September 2014, the American Civil Liberties Union asked the Federal Communications Commission to investigate the maker of the Stingray for allegedly misrepresenting information regarding data collection capabilities. According to documents obtained during a Freedom of Information Request by the ACLU of Northern California, Florida-based Harris Corporation misled the FCC about the frequency of use for the Stingray.

In an email from June 24, 2010, an employee with Harris told the FCC that the devices (Stingfish in this case) “purpose is only to provide state/local law enforcement officials with authority to utilize this equipment in emergency situations.” However, the ACLU reports, “records released by the Tallahassee, Florida, Police Department explain that in nearly 200 cases since 2007 where the department used a StingRay, only 29 percent involved emergencies; most of the rest involved criminal investigations in which there was ample time to seek some sort of authorization from a judge.”

Another point of contention is the use of non-disclosure agreements by Harris Corp. The corporation and police departments around the nation have been criticized for signing the agreements which allow them to keep quiet on the devices. Local police departments have become subordinate to Harris and, even in court cases in front of a judge, are not allowed to speak on the details of their arrangements.

What we do know is that the technology has made it into the hands of at least 47 agencies in 19 states, according to the ACLU. At least 12 federal agencies are known to use the devices. (Check out this helpful map to find out if your state has them.)

It is up to free hearts and minds everywhere to stay educated about the growing surveillance state and work to expose and combat the technologies when ever possible.

For more information check out this Guide to Stingray Technology.

This article (Judge Orders New York Sheriff to Release StingRay Surveillance Records) is free and open source. You have permission to republish this article under a Creative Commons license with attribution to the author and TheAntiMedia.org. Tune in to the Anti-Media radio show Monday through Friday @ 11pm Eastern/8pm Pacific. Help us fix our typos: edits@theantimedia.org.