February 12, 2013 | By Trevor Timm

As Secretive "Stingray" Surveillance Tool Becomes More Pervasive, Questions Over Its Illegality Increase

A few months ago, EFF warned of a secretive new surveillance tool, commonly referred to as a "Stingray," being used by the FBI in cases around the country. Recently, more information on the device has come to light and it makes us even more concerned than before.

The device, which acts as a fake cell phone tower, essentially allows the government to electronically search large areas for a particular cell phone's signal—sucking down data on potentially thousands of innocent people along the way. At the same time, law enforcement has attempted use them while avoiding many of the traditional limitations set forth in the Constitution, like individualized warrants. This is why we called the tool "an unconstitutional, all-you-can-eat data buffet."

Recently, LA Weekly reported the Los Angeles Police Department (LAPD) got a Department of Homeland Security (DHS) grant in 2006 to buy a stingray. The original grant request said it would be used for "regional terrorism investigations." Instead LAPD has been using it for just about any investigation imaginable.

In just a four month period in 2012, according to documents obtained by the First Amendment Coalition, the LAPD has used the device at least 21 times in “far more routine” criminal investigations. The LA Weekly reported Stingrays “were tapped for more than 13 percent of the 155 ‘cellular phone investigation cases’ that Los Angeles police conducted between June and September last year.” These included burglary, drug and murder cases.

Of course, we’ve seen this pattern over and over and over. The government uses “terrorism” as a catalyst to gain some powerful new surveillance tool or ability, and then turns around and uses it on ordinary citizens, severely infringing on their civil liberties in the process.

Stingrays are particularly odious given they give police dangerous “general warrant” powers, which the founding fathers specifically drafted the Fourth Amendment to prevent. In pre-revolutionary America, British soldiers used “general warrants" as authority to go house-to-house in a particular neighborhood, looking for whatever they please, without specifying an individual or place to be searched.

The Stingray is the digital equivalent of the pre-revolutionary British soldier. It allows police to point a cell phone signal into all the houses in a particular neighborhood, searching for one target while sucking up everyone else’s location along with it. With one search the police could potentially invade countless private residences at once.

In another recent development, the FBI handed over two documents—out of an estimated 25,000 they have on Stingrays—to EPIC as part of the privacy group’s Freedom of Information Act lawsuit to obtain more information about the use of mysterious devices. As Slate’s Ryan Gallagher reported:

Two heavily redacted sets of files released last month show internal Justice Department guidance that relates to the use of the cell tracking equipment, with repeated references to a crucial section of the Communications Act which outlines how “interference” with communication signals is prohibited. 

It’s a small but significant detail. Why? Because it demonstrates that “there are clearly concerns, even within the agency, that the use of Stingray technology might be inconsistent with current regulations,” says EPIC attorney Alan Butler. “I don't know how the DOJ justifies the use of Stingrays given the limitations of the Communications Act prohibition.”

The documents also suggest that the FBI is loaning out the devices to local police.

On March 28th, the judge overseeing the Rigmaiden case, which we wrote about previously, will hold a hearing on whether evidence obtained using a stingray should be suppressed.  It will be one of the first times a judge will rules on the constitutionality of these devices in federal court.

It’s time for local police and federal law enforcement agencies to come clean about the technology and how they are using it, before more ordinary citizens have their constitutional rights violated.

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