Court records in Oakland reveal cases where a warrant wasn’t required to listen to calls and how much law enforcement uses the devices.
Court documents ordered released by a judge in Oakland, California, have
revealed rare insights into how local police and the FBI use a sophisticated
surveillance device known as Stingray.
Stingray, manufactured by the Delaware-based Harris
Corporation, is one of a class of devices known as “cell site simulators” or
“IMSI-catchers”. About the size of a suitcase, they work by pretending to be a
cellphone tower in order to strip metadata and in some cases phone content and
data from nearby devices tricked into connecting to it.
Despite the fact that the devices are also capable of
listening to phone calls, in many cases they still do not require a warrant to
use, instead requiring a much lower-level authorisation known as a
“trap-and-trace”, a court order designed in the era of the rotary phone.
However, following several years of reporting by the
Guardian, Ars Technica, the Wall Street Journal and others, some states –
including California – and some federal agencies now require a full warrant for
their use.
The Oakland documents, which were first
reported on by Ars Technica, show that the city police department used its
Stingray device for several hours in a search for a suspect named Purvis Ellis,
the lead defendant of four alleged members of an Oakland gang facing trial on
nine federal charges including the attempted murder of a police officer in
January 2013.
Vancouver police confirm use of 'stingray' surveillance
technology
After they failed to locate Ellis using their Stingray
device, the Oakland police then asked the FBI for help, the documents reveal.
The FBI – using their own Stingray and an “augmentation device” about which
little is known – located Ellis and brought him into custody.
Ars Technica speculates that this might have been because
the Oakland police’s Stingray was an older model that did not work with 4G
phone networks. In
2014 it was reported that Oakland was among the cities seeking funding
to upgrade to the more sophisticated Hailstorm device, which is also made by
Harris Corporation.
The scale of the use of such devices by local and federal
law enforcement agencies has only recently begun to emerge into the daylight. A
Guardian investigation in 2015 revealed the non-disclosure agreement
that local police were forced to sign with the FBI before receiving permission
to use Stingray – a document that mandated local prosecutors to abandon cases
rather than risk information about Stingray becoming public.
The past two years have seen a slow drip of information
about the spread of Stingray and similar devices. According
to the American Civil Liberties Union(ACLU), at least 66 state and federal
agencies are now known to use the devices,including
the IRS, as well as dozens of state and local police departments.
The FBI’s statement in
the Oakland case illustrates the lengths to which the agent goes to convince
the judge that this type of surveillance is not overstepping the boundaries of
privacy. The statement reads more like a press release than a legal
declaration.
US Marshals spent $10m on equipment for warrantless
Stingray surveillance
The agent says that, as configured by the FBI, “the cell
site simulator does not remotely capture emails, texts, contact lists, images
or other data from the phone,” a claim which is repeated almost in full two
more times in the statement.
The agent also goes out of his way to describe how the data
collected with the device was purged after the subject was taken into custody,
and the affidavit from Oakland’s police department makes a similar claim.
As privacy activists have pointed out, the Stingray device –
as well as similar devices like the newer and more powerful Hailstorm or
Boeing’s DRTBox – are technically capable of accessing phone content and data;
the judge, and the public, are effectively being asked to take the police and
the FBI at their word that the devices are not being used in this way.
In 2015, the
Guardian reported that up to 2,000 cases in Baltimore could be
overturned after police were accused of “deliberate and willful
misrepresentation” of the evidence obtained using Stingray devices.
The same year, Governor Jerry Brown of California signed a
law which mandates that Stingray use requires a full search warrant, rather
than a mere trap-and-trace order, to use. The federal departments of justice
and homeland security have also updated their policy to require their officers
to obtain a warrant in most – though not all – circumstances.
The Stingray
Privacy Act, proposed in 2015 by Representative Jason Chaffetz of Utah,
would make all warrantless Stingray use illegal. It is currently being
considered by the House crime, terrorism, homeland security and investigations
committee.