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Stingray: a New Frontier in Police Surveillance PolicyAnalysis January 25, 2016 | Number 809 Stingray A New Frontier in Police Surveillance By Adam Bates EXECUTIVE SUMMARY olice agencies around the United States are of extensive nondisclosure agreements, the federal gov- using a powerful surveillance tool to mimic ernment prevents state and local law enforcement from cell phone signals to tap into the cellular disclosing even the most elementary details of stingray phones of unsuspecting citizens, track the capability and use. That information embargo even applies physical locations of those phones, and per- to criminal trials, and allows the federal government to Phaps even intercept the content of their communications. order evidence withheld or entire cases dropped to protect The device is known as a stingray, and it is being used the secrecy of the surveillance device. in at least 23 states and the District of Columbia. Origi- The controversy around police stingray surveillance nally designed for use on the foreign battlefields of the challenges our antiquated Fourth Amendment jurispru- War on Terror, “cell-site simulator” devices have found a dence, undermines our cherished principles of federalism home in the arsenals of dozens of federal, state, and local and separation of powers, exposes a lack of accountability law enforcement agencies. and transparency among our law enforcement agencies, In addition, police agencies have gone to incredible and raises serious questions about the security of our indi- lengths to keep information about stingray use from vidual rights as the government’s technological capability defense attorneys, judges, and the public. Through the use rapidly advances. Adam Bates is a policy analyst with the Cato Institute’s Project on Criminal Justice. 2 BACKGROUND the difficulties of discovering law enforcement What the War In 2013, three men set up a drug deal in a Tal- use of the technology, it is reasonable to assume on Drugs has lahassee parking lot. When the drug dealer ar- that police agencies in many more states are “ rived, the men pulled out a weapon and robbed also using the devices in secret. done for po- the dealer of the drugs and his cell phone.1 Police While events like the 2014 unrest in Fergu- lice militariza- arrested the robbers a few days later, in posses- son, Missouri, and repeated stories of botched tion, the War sion of the drugs and the phone, and charged Special Weapons and Tactics (SWAT) raids have on Terror is them with armed robbery with a deadly weapon, laid bare many of the problems involved in an which carries a mandatory minimum sentence increasingly militarized domestic police force, now doing of nearly three years in prison under Florida law mission creep has not been limited to weapons for police and allows sentences of up to 30 years. Prosecu- and tactics.5 What the War on Drugs has done intelligence tors had the men dead to rights. for police militarization, the War on Terror is But the case took a bizarre turn when de- now doing for police intelligence gathering, and gathering, and fense attorneys began wondering how the police the privacy of millions of Americans is at risk. the privacy managed to find their clients so quickly. The po- Much remains unknown about these devic- of millions of lice and prosecution refused to say. Finally, the es. More troubling still is that the lack of pub- Americans is judge demanded answers. Rather than reveal the lic knowledge is by design. Through the use of method by which police were able to find the nondisclosure agreements, a refusal to honor at risk. suspects, the prosecution offered the men a plea freedom of information requests, and deceit deal: probation with no jail time.2 Why would toward courts and the public, the full capa- prosecutors drop such a “slam dunk” case? bilities of these devices, the extent of their ” The case came apart due to the govern- use by law enforcement, and the existence of ment’s use of a surveillance device it refused to policies to govern their use remain secret. But disclose to the court. Across the United States, interested defense lawyers and civil liberties federal and state law enforcement agencies are advocates have uncovered evidence that the sweeping up cell phone and location data from use of stingray devices by domestic law en- American citizens using a device colloquially forcement agencies poses a litany of legal and referred to as a “stingray.”3 Stingray surveillance ethical questions. The purpose of this paper is devices are cellular site simulators—they mim- to illuminate those issues and to suggest some ic the signal of a cell phone tower in order to possible legislative and judicial remedies. force cell phones in the area to connect. Once The paper will detail the history of the de- a phone connects, the officer can download in- vices and their use by local law enforcement, the formation from the phone or track its location. known and alleged extent of their capabilities, Originally designed for military and na- and why this technology renders millions of in- tional security use, the surveillance devices nocent Americans at risk of having their person- made their way into local law enforcement of- al data and communications information swept ficers’ hands, in coordination with the federal up in law enforcement fishing expeditions. government, through a variety of transfer and In recent years, stingrays have moved from grant programs—such as the Urban Areas Secu- military and national security uses to routine rity Initiative—as well as through local funding police use. Surveillance technology, designed sources—such as civil asset forfeiture funds. for use on battlefields or in antagonistic states Police agencies in 23 states and the District of where constitutional concerns are minimal, Columbia, as well as federal agencies includ- has increasingly found its way into the hands of ing the Federal Bureau of Investigation (FBI), local law enforcement, often without any dis- the Drug Enforcement Administration (DEA), cernible effort to adapt the equipment or the the National Security Administration (NSA), policies governing its tactical use to the home and the Department of Homeland Security, front, where targets are citizens with constitu- are known to be using the devices.4 Because of tional rights rather than battlefield combatants. 3 Further exacerbating the problems with local use of stingrays, have compromised pros- stingray transfers are the efforts of the Harris ecutions of people suspected of serious violent The govern- Corporation (the Florida-based manufacturer of crimes. In other words, the ostensibly hypothet- ment plainly the devices) and the federal agencies responsible ical prosecutions of terrorists and drug kingpins “ for licensing and coordinating the transfers of are crowding out actual prosecutions of crimi- views these devices to state and local law enforcement nals when police and prosecutors are forbidden sacrificing agencies to hide the technology. The adminis- from disclosing stingray use to the courts. individual trative regime that the federal government and This phenomenon is not an accident; the prosecutions, the Harris Corporation have built requires law terms of the agreement make such crowding enforcement agencies to keep the capabilities, out inevitable. The government plainly views even for uses, and often, the very existence of stingrays sacrificing individual prosecutions, even for serious secret from citizens, legislators, and courts. serious crimes, as an acceptable price for con- crimes, as an In defense of this veil of secrecy, government cealing the nature of stingray surveillance. The agencies have offered several justifications. Ad- FBI’s nondisclosure agreement is clear: in ex- acceptable vocates of domestic stingray use insist that the change for permission to use stingray devices, price for devices are essential tools for law enforcement state and local officials must surrender prosecu- concealing and that public revelation of their technological torial discretion to the federal government. the nature of capabilities will compromise the efficacy of sur- Few jurisdictions have willingly admitted to veillance. They point to instances where sting- deploying stingray devices. Even fewer have of- stingray sur- ray surveillance facilitated a positive outcome, fered any semblance of a publicly available policy veillance. and they highlight the need for law enforce- on their use. The Department of Justice, which ment technology to keep up with advances in has deployed stingrays for years, only recently the technology of the criminal world. announced an initial stingray policy for Justice ” While stingray technology indeed gives law Department agencies, and it leaves much to be enforcement officers an added advantage over desired. The use of stingray surveillance devices their surveillance targets, the advantage does not in the absence of a warrant from a fully informed justify secrecy or answer constitutional concerns. judge and without any legislative or public over- The claims that these devices are essential for sight undermines the separation of powers nec- preventing terrorist attacks and bringing down essary to hold the government accountable. drug kingpins do not, as this paper will show, fit The relationship between the federal gov- with the data thus far uncovered, which details ernment, Harris, and state and local law en- stingray use by local law enforcement. Terrorists forcement agencies also represents a threat and drug kingpins long ago concluded that their to American
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