A law professor has filed a formal legal complaint on behalf of three advocacy organizations, arguing that stingray use by law enforcement agencies nationwide—and the Baltimore Police Department in particular—violate Federal Communications Commission rules.

The new 38-page complaint makes a creative argument that because stingrays, or cell-site simulators, act as fake cell towers, that law enforcement agencies lack the spectrum licenses to be able to broadcast at the relevant frequencies. Worse still, when deployed, cell service, including 911 calls, are disrupted in the area.

Stingrays are used by law enforcement to determine a mobile phone's location by spoofing a cell tower. In some cases, stingrays can intercept calls and text messages. Once deployed, the devices intercept data from a target phone along with information from other phones within the vicinity. At times, police have falsely claimed the use of a confidential informant when they have actually deployed these particularly sweeping and intrusive surveillance tools. Often, they are used to locate criminal suspects.

As Laura Moy of Georgetown University wrote to the FCC:

Under the Communications Act, to operate a cellular transceiver on licensed spectrum reserved for operation of cellular networks, BPD is required by federal law to obtain a license. But in a clear violation of law, BPD has no license whatsoever to operate its CS simulator equipment on frequency bands that are exclusively licensed to cellular phone carriers in Baltimore. BPD further violates the Communications Act by willfully interfering with the cellular network through its use of [cell-site] simulator equipment. … Cell site simulators harm the communities where they are deployed and the individuals in those communities Cell site simulators are harmful to individuals in their vicinity. These devices disrupt normal operation of the cellular phone network, preventing those within their reach from placing cellular phone calls normally. Disruption of the network extends to emergency calls. Worse, these disruptions to the cellular network and the life-saving communications it serves are not experienced equally by all Americans.

The fact that stingrays disrupt 911 traffic has been long suspected, but never proven until just a few months ago. It wasn’t until earlier this year, when Canadian media reported on the Asian Assassinz trial in Toronto. There, Detective Shingo Tanabe swore in an affidavit that the Toronto Police would not keep its stingray on for more than three minutes at a time, for fear of running afoul of Canadian telecom law and blocking possible 911 traffic.

No way to know

Because this newly revealed 911 issue affects Americans as well as Canadians, according to Chris Soghoian , a technologist with the American Civil Liberties Union, there’s now a clear explanation as to why their mobile service might suddenly stop working.

“In Flint, Michigan, when people saw brown water coming out of their taps, they complained,” he told Ars. “If you don’t know the reason your phone doesn’t work is because of your police department, you may never complain, you may complain to Verizon or AT&T and they will say: ‘Everything looks good on our end.’ You will never know it’s your own government making your phone dysfunctional, that lack of feedback means that law enforcement never pays a price for disrupting calls in these communities.”

In the complaint, Moy then connected the dots, arguing on behalf of her clients, the Center for Media Justice, Color of Change, and the New America Foundation, that because stingrays are primarily deployed in communities of color, they disproportionately affect minority groups in Baltimore and nationwide.

In Baltimore alone, prosecutions have been dropped rather than compelling officers to describe before a judge precisely how stingrays are used and where they are deployed. Last year, nearly 2,000 cases had to be reviewed after USA Today revealed that the Baltimore Police Department had used stingrays to locate suspects, some of whom were accused of such minor crimes as stealing a phone.

“Baltimore made sense as a target because it does have a long and clear history of racially biased policing and they do make incredibly heavy use of these devices,” she told Ars.

Moy wants the FCC to prohibit the BPD from using stingrays going forward.

An uphill battle

When Ars consulted with several lawyers and privacy experts, they agreed that this was a worthwhile effort, but no one seemed to think that this would ultimately result in a complete shutdown of Baltimore’s stingray arsenal.

“The FCC simply has no interest in upsetting the apple cart on stingray, despite growing evidence of abuse,” Harold Feld, a lawyer and the vice president of Public Knowledge, told Ars. “This is not surprising. One of the problems with the FCC enforcement scheme is that once a device is authorized for use, it is practically impossible to get the FCC to pull it.”

The Harris Corporation, the largest maker of cell-site simulators, has received formal permission from the FCC to sell the devices to local law enforcement.

Two years ago, Ars reported that a recently revealed e-mail from 2010 shows that Harris told the FCC that its purpose "is only to provide state/local law enforcement officials with authority to utilize this equipment in emergency situations,” which is almost certainly false.

In February 2015, Ars reported that newly released records show that Florida law enforcement agencies have been using stingrays thousands of times since at least 2007 to investigate crimes as small as a 911 hangup.

Brian Owsley, himself a former federal magistrate judge who is now a law professor at the University of North Texas, also wondered about the fact that the Moy complaint does not point to any particular person who has been harmed by the deployment of a stingray. He describes her concerns as “theoretical.”

“In other words, she does not have anyone who can say that they were unable or delayed in getting 911 service or something else because of the Baltimore Police Department's illegal use of the frequency,” he told Ars. “Similarly, I fully accept the fact that the police department has a very poor history of race relations and the treatment of African-Americans, but again she does not come up with anyone or any example of someone who was targeted by law enforcement with a cell site simulator because of their race.”

Across the country, in Oakland, California, the head of a new local commission devoted to examining privacy in the context of the city’s law enforcement had similar thoughts.

“I think the arguments are legitimate, especially as to spectrum interference, but I wonder if they have standing,” Brian Hofer, chair of the City of Oakland Privacy Advisory Commission, told Ars. “If AT&T and Sprint don't care about interference with their property rights, can a public interest group prevail on this argument? I wish this complaint had introduced an example or two of actual harm. It reads as mostly speculative damages, and those arguments are hard to win.”

For his part, Soghoian indicated that while he hopes to be proven wrong and that the complaint succeeds, he doesn’t have a lot of hope.

“I’m not optimistic just because I think the FCC believes protecting law enforcement’s ability to spy is more important than Americans ability to make emergency calls,” he said.