COLUMBIA, S.C. (Dec. 19, 2018) – A bill introduced in the South Carolina House would ban the use of cell site simulators that sweep up electronic communications and track the location of electronic devices. The legislation would not only protect privacy in South Carolina, but would also hinder one aspect of the federal surveillance state.

Rep. Todd Rutherford (R-Columbia) filed House Bill 3368 (H.3368) on Dec. 18. The legislation would help block the use of cell site simulators, commonly known as “stingrays.” These devices 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.

H.3368 would prohibit South Carolina law enforcement agencies from purchasing cell site simulators and would require any department that currently uses or possesses such a device to discontinue its use and discard the technology. Passage of H.3368 would effectively ban the use of stingrays by state and local police in South Carolina.

Rutherford filed a second bill that would not ban law enforcement agencies from purchasing cell site simulators, but would severely limit their ability to do so. House Bill 3290 (H.3290) would prohibit police departments from purchasing cell-site simulator technology from a company that requires the purchaser of the equipment to enter into a nondisclosure agreement. Passage of this bill would dramatically increase transparency and actually stop the vast majority of stingray purchases.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

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 in April 2015, 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 experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.

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 databases.

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 or simply banning stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of HB352 and 353 would strike a major blow to the surveillance state and would be a win for privacy.

WHAT’S NEXT

Both H.3368 and H.3290 will be referred to the House Committee on Judiciary when the South Carolina legislature convenes on Jan. 8.