By Mike Maharrey
A bill prefiled in the South Carolina House would ban the use of “stingray” devices to track the location of phones and sweep up electronic communications. The passage of the bill would not only protect privacy in the state; it would also hinder one aspect of the federal surveillance state.
Rep. Todd Rutherford (D-Richland) filed House Bill 3389 (H3389) on Dec. 8. The proposed law would ban South Carolina law enforcement agencies from purchasing or using 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. This allows law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or electronic device. Police often obtain and use stingray technology in complete secrecy and use it to track people and gather electronic data without a warrant.
In effect, H3389 would prohibit South Carolina law enforcement agencies from purchasing cell-site simulator technology or devices. Any police department that currently possesses or uses cell-site simulator technology or devices would be required to discontinue its use and discard the technology or devices.
Rutherford profiled a second bill that would limit the acquisition of cell-site simulators. House Bill 3390 (H3390) would prohibit law enforcement agencies from purchasing cell-site simulators from any company that requires a non-disclosure agreement as a condition of purchase. Since the major stingray manufacturers in cooperation with the FBI require such agreements, this would significantly hinder police from obtaining this invasive technology. At the least, it would increase transparency, making it more difficult to hide the purchase of stingrays from the public.
Passage of either bill would not only protect the privacy of South Carolinians, but it will also hinder one aspect of the federal surveillance state.
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 (NDA). 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.”
A Deleware State Police NDA with the Harris Corporation obtained by the ACLU reveals just how much secrecy surrounds stingray surveillance. The ACLU summed up the NDA.
The agreement, signed by a state police detective in 2010, stated that officers could not “discuss, publish, release or disclose any information pertaining to the (cell phone tracking) products” to the general public, to companies, to other governmental agencies, or even to other officers who do not have a “need to know.” A letter attached to the agreement, and signed by Harris Corp.’s account manager, said police are not permitted to talk about the devices with “elected officials.” “Stealth, quiet approach and skilled execution are the glue that transforms weapons and technology investments into capabilities and results,” Harris Corp.’s Michael E. Dillon said in the letter. “Only officers with arrest authority are permitted to use them (Stingrays) or have knowledge of how they work.”
Harris cited federal law for the conditions in the agreement, which it stated is similar to other “intelligence-oriented aspects of your operations.”
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 fusion centers and 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.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. 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. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
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.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. The enactment of laws limiting or prohibiting the use of stingrays strikes a major blow to the surveillance state and would be a win for privacy.
H3389 and H3390 will be officially introduced when the South Carolina legislature convenes on Jan. 10. Both bills will be referred to the House Committee on Judiciary. The bills will have to get a hearing and pass the committee by a majority vote before moving forward in the legislative process.