PolicyAnalysis

January 25, 2016 | Number 809 Stingray A New Frontier in Police 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 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 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 federalist principles. The federal cell phones were liabilities, and the reports de- government’s terms of use amount to a demand tailing local stingray use support that conclusion. that state and local officials abrogate their -au Several data releases compelled by state freedom thority to prosecute cases when the federal of information litigation have uncovered little government would rather maintain secrecy. evidence that stingrays are being used to foil These conditions undermine the police powers terrorists. The releases have, however, revealed of the states, as does the mandate that agencies thousands of warrantless stingray uses across the conceal their surveillance tactics from judges in country for entirely routine law enforcement ac- cases before them. tions. Rather than bringing down terrorists and This threat to federalism was apparent when, cartels, the government is using stingray surveil- in 2014, U.S. Marshals literally raided the Sara- lance to sidestep the Fourth Amendment’s war- sota Police Department and seized stingray rant requirement. documentation in order to prevent the depart- Meanwhile, the overly restrictive terms of the ment from complying with a state-level freedom nondisclosure agreement, upon which both the of information request.6 The Florida chapter Harris Corporation and the FBI condition the of the American Civil Liberties Union (ACLU) 4

had recently secured an order requiring the Sara- ingly susceptible to digital hacking and surveil- When state sota police to turn over documents pertaining to lance, the government’s technological capabili- and local law stingray use. To prevent that information from ties have far outpaced legal standards created to “ being turned over to the ACLU and the public, regulate much older and less invasive technology. enforcement the U.S. Marshals Service launched a pre-dawn It is incumbent upon legislatures and courts to are beholden raid on the police department to take posses- close the growing gap. to the federal sion of the information. The federal government Finally, this paper will explore possible re- government has also urged local law enforcement agencies to forms, including efforts at both the state and deceive state judges, and continues to exert pres- federal level that are already underway. Several for funding, sure in favor of secrecy rather than public disclo- state legislatures have already undertaken ef- equipment, sure and oversight.7 forts to oversee the use of these devices, several and tactics, Ultimately, the increasing militarization courts have now revised their rules for dealing of police through federal equipment transfers with stingray evidence, and there is a realistic state law and grant programs unavoidably risks the sub- potential for public policy to vastly improve the enforcement version of local law enforcement priorities in protection of our constitutional rights in the priorities are favor of federal ones. When state and local law face of warrantless surveillance by law enforce- inevitably enforcement are beholden to the federal gov- ment. While law enforcement’s crime-fighting ernment for funding, equipment, and tactics, capabilities must keep pace with advances in altered. state law enforcement priorities are inevitably technology, stingray supporters’ argument that altered. complete secrecy is the only means of effecting Stingray use presents several novel legal is- such advances requires scrutiny. ” sues as well. The Fourth Amendment provides that people have a right to “be secure in their persons, houses, papers, and effects, against HOW DO STINGRAYS WORK? unreasonable searches and seizures.”8 Over the Although the precise extent of stingray use years, the Supreme Court has adopted methods remains shrouded in secrecy, defense lawyers of analyzing Fourth Amendment claims, such and civil liberties advocates, working through as the reasonable expectation of privacy9 test trial discovery efforts and freedom of infor- and third-party doctrine.10 mation litigation, have uncovered a great deal In the absence of guidance from the courts, about the capabilities of the devices. many law enforcement agencies settle for the Historically, police have tracked cellular use of what are known as “pen register” or “trap phones through the use of cell tower data col- and trace” orders, which generally require less lected from, and in coordination with, third- evidence of wrongdoing than a proper warrant party cell signal carriers. Through the use of pen would.11 As the names suggest—both were orig- register or trap and trace orders, police compel inally methods of obtaining information from carriers to disclose phone records that allow law telegraph machines—these legal standards were enforcement agents to locate particular cellular created at a time when today’s technological in- phones. The records allow police to use the car- frastructure could scarcely be imagined. rier’s cell towers to triangulate the position of What it means to “be secure” from unrea- the suspect’s phone at any given time.12 sonable searches is also the source of renewed Stingrays, on the other hand, give govern- interest among Fourth Amendment scholars, ment agents the capability to circumvent that who argue that the phrase’s meaning has been process by locating cell phones without the historically misconstrued. This paper will ex- assistance of cell carriers, potentially enabling plore that argument and whether it contains law enforcement to avoid seeking any judicial the answer to the problem of authorization first. under our constitutional framework. Stingrays are cellular-site simulators. They As the private details of our lives are increas- operate by mimicking the signal of a cell phone 5 tower in order to force all cell phones within a precise. Law enforcement officials have testi- given area to connect to the stingray device. fied that stingray devices have allowed them The full Cell phones are designed to automatically to locate cell phones to within six feet and to extent of connect to the cell tower that is broadcasting identify a phone in a particular section of an “ the strongest signal. A typical cell phone could apartment in a large apartment complex.14 The the stingray connect and reconnect dozens of times in a precision of this data raises constitutional ques- data-ripping given day in order to achieve the strongest sig- tions regarding warrantless searches of private capability is nal as the user travels. Stingray devices produce domiciles, a practice the Supreme Court has unknown, a boosted signal that muscles out the signals historically viewed with immense skepticism. from legitimate cell towers and becomes the The full extent of the stingray data-ripping but there is preferred signal source for the cell phone. All of capability is unknown, but there is substantial substantial this can transpire without the knowledge of, or reason to believe that even user content, such reason to any input from, the cell phone user or the net- as browser activity, SMS text messages, and work carrier. Once the phones are connected the content of phone calls can be intercepted. believe that to the device, the stingray operator can locate The Department of Justice’s own Electronic even user the phone, interfere with its signal, and even re- Surveillance Manual is vague but certainly content, such trieve from the device. leaves the door open to widespread personal as browser A phone’s location can be triangulated us- data collection: ing its international mobile subscriber identity activity, SMS (IMSI), which is a unique number that phones If the cellular telephone is used to make text messages, use to communicate with the cellular network. or receive a call, the screen of the [cell-site and the There are two methods of using the IMSI to simulator] would include the cellular tele- locate a phone: the government can either ask phone number (MIN), the call’s incoming content of the third-party carrier to voluntarily reveal the or outgoing status, the telephone number phone calls IMSI of a particular phone or compel the car- dialed, the cellular telephone’s ESN, the can be inter- rier under a court order. As the stingray forces date, time, and duration of the call, and cepted. cell phones in a target area to connect to it, the cell site number/sector (location of the the operator can screen the incoming “ripped” cellular telephone when the call was con- IMSI numbers against the known IMSI num- nected)… [Cell site simulators] and similar ber he or she is trying to track. Once the sus- devices may be capable of intercepting the con- ” 15 pect IMSI pings the stingray, the precise loca- tents of communications [emphasis added]. tion of the phone can be triangulated. Alternatively, if the IMSI number of the The Department of Justice recently ar- target is unknown, the stingray can collect the ticulated publicly, for the first time, a written IMSI numbers of every phone in the target policy for Department of Justice stingray use, location.13 Law enforcement can then visually but that policy does little to allay concerns survey the scene while collecting cell data in or- about the possibility of excessive data collec- der to isolate the IMSI number of an individual tion. Rather than claim that current stingray suspect’s phone. As police follow the suspect devices lack the ability to take content, the out of range of the other phones, his unique policy states that devices are not “configured” IMSI will eventually become apparent to the to do so and that to take content in that man- stingray operator. This tactic can be combined ner would violate federal law: with the previously discussed pinging tactic in a way that cuts the network carrier entirely out Cell-site simulators used by the Depart- of the process and allows police to both derive ment must be configured as pen regis- and surveil a given IMSI number on their own. ters, and may not be used to collect the The location data produced by the stingray contents of any communication, in ac- and its accompanying software is remarkably cordance with 18 U.S.C. 3127(3).16 6

The implication is clear: the federal govern- and the National Security Agency. Even the In- Stingray ment denies using stingray devices to take user ternal Revenue Service possesses stingray de- devices are content in the domestic law enforcement con- vices.19 Freedom of Information Act (FOIA) “ text, but nothing in the Department of Justice requests, along with litigation and media inves- capable of policy refutes that the devices indeed possess tigation, have revealed state or local law enforce- collecting a such a capability. ment use of the technology in 23 states and the tremendous Even insofar as the policy requires the use District of Columbia as of October 2016.20 amount of of warrants and forbids the collection and re- By 2010 the Harris Corporation had entered tention of private data, it is only administrative into negotiations with the Federal Communi- personal data, guidance rather than statutory law. Further, as cations Commission (FCC), which regulates and not the Department of Justice policy applies only the sale and use of all radio-emitting devices, to just from to the federal agencies under the jurisdiction begin licensing stingray equipment to state and of the Department of Justice, there remains a local law enforcement.21 Harris requested, and suspected substantial danger that other federal, state, and the FCC assented to, a provision of the licens- criminals. local law enforcement agencies do not impose ing agreement that would require law enforce- similar restraints.17 ment agencies that wish to employ stingray Stingray devices are capable of collecting a devices to coordinate their acquisition and use ” tremendous amount of personal data, and not with the FBI.22 just from suspected criminals. The stingray de- In exercising its coordination authority, the vice doesn’t discriminate between target cell FBI requires state and local law enforcement phones and other phones in the area. It can in- agencies to accept a comprehensive nondisclo- terfere with signals, record telephony metada- sure agreement before being allowed to acquire ta, pinpoint locations, and potentially intercept stingray devices. Law enforcement officials have the content of calls and text messages. Despite interpreted the nondisclosure agreement as pre- this intrusive capability, many jurisdictions venting even the disclosure of the agreement it- have no publicly available policy guidelines at self, and until recently, lawyers and civil libertar- all, due in large part to the way stingrays came ians could only speculate about its terms. into the possession of domestic law enforce- However, in March 2015, a Supreme Court ment agencies in the first place. of New York23 ruling in favor of the New York Civil Liberties Union against the Erie County Sheriff’s Office finally led to the disclosure of DOMESTICATION OF STINGRAY an unredacted copy of the FBI’s coordination SURVEILLANCE agreement.24 The Erie County agreement The cell-site simulators used by law en- imposes 11 conditions on the agency’s use of forcement are primarily manufactured by the stingray devices, on issues ranging from train- Florida-based Harris Corporation. Originally ing requirements to a mandate that agencies used exclusively by the federal government, keep the devices secret from public informa- the proliferation of cell-simulator software for tion requests. purely state and local law enforcement use has The most remarkable of these provisions rapidly accelerated.18 grants the FBI plenary power to compel state The technology is currently in use by the and local authorities to drop criminal cases, Federal Bureau of Investigation; the Bureau regardless of the severity of the offense, if the of Alcohol, Tobacco, Firearms, and Explosives secrecy of the stingray device would be com- (ATF); the Department of Homeland Security promised by moving forward with the prosecu- (DHS); Immigrations and Customs Enforce- tion. The provision also bars law enforcement ment (ICE); the U.S. Marshals Service; and the agencies and prosecutors from disclosing any Drug Enforcement Administration; as well as revealing information about the devices at any the Army, Navy, Marine Corps, National Guard, stage of criminal or civil proceedings. 7

The “drop prosecution” condition of the FBI disclosure agreement and risking the ire of the nondisclosure agreement with Erie County reads federal government. National in full: This situation is not hypothetical. Evidence security and from numerous jurisdictions shows state and “ In addition, the Erie County Sheriff’s local prosecutors doing precisely what the military Office will, at the request of the FBI, nondisclosure agreement ostensibly demands: agencies may seek dismissal of the case in lieu of using dropping evidence or even entire prosecutions occasionally or providing, or allowing others to use against criminal suspects when their defense have a need for or provide, any information concerning attorneys suspect that stingrays were used in the Harris Corporation wireless collec- the investigations of their clients and demand such extensive tion equipment/technology, its associ- to see the devices in court. secrecy man- ated software, operating manuals, and Shortly after the unredacted nondisclosure dates, but what any related documentation (beyond the terms were revealed, the FBI issued a statement evidentiary results obtained through the denying that it had ever invoked the authority justifications use of the equipment/technology), if us- to compel prosecutors or police to refuse to can state and ing or providing such information would participate in prosecutions built upon stingray local police 27 potentially or actually compromise the evidence. The statement did not, however, agencies equipment/technology. This point sup- disclose whether or how often the FBI has au- poses that the agency has some control or thorized disclosure of stingray data to courts or offer to defend influence over the prosecutorial process. defendants pursuant to the “no information” material Where such is not the case, or is limited clause of the agreement. The FCC, for its part, omissions to so as to be inconsequential, it is the FBI’s has denied any responsibility for both the terms expectation that the law enforcement of the FBI’s nondisclosure agreement and the judges, agency identify the applicable prosecut- requirement that state and local law enforce- attorneys, ing agency, or agencies, for inclusion in ment agencies agree to it in the first place.28 criminal 25 this agreement. Notwithstanding these statements, state and defendants, local law enforcement agencies around the The “no information” provision states: country have, rightly or wrongly, interpreted and the public the agreement to mean that they are not al- at large? The Erie County Sheriff’s Office shall not, lowed to disclose the nature of stingray surveil- in any civil or criminal proceeding, use or lance devices to courts or defense attorneys. provide any information concerning the Over time, stingrays have moved from mili- ” Harris Corporation wireless collection tary and national security tools to routine law equipment/technology [. . .] including, but enforcement devices. National security and mili- not limited to, during pre-trial matters, in tary agencies may occasionally have a need for search warrants and related affidavits, in such extensive secrecy mandates, but what justi- discovery, in response to court ordered fications can state and local police agencies offer disclosure, in other affidavits, in grand jury to defend material omissions to judges, attorneys, hearings, in the State’s case-in-chief, rebut- criminal defendants, and the public at large? tal, or on appeal, or in the testimony in any phase of civil of criminal trial, without the prior written approval of the FBI.26 JUSTIFICATIONS FOR STINGRAY USE In other words, if defense attorneys ask the Law enforcement agencies have offered a right questions, they can force the prosecu- variety of justifications for stingray use and for tion to choose between dropping the case (or the lack of transparency accompanying it. The at least the evidence gleaned from the use of primary justification for stingray use is that cell- a stingray) and violating the terms of the non- site simulator surveillance is a powerful tool 8

for law enforcement, and of this, there is little to neutralize the surveillance by changing their In Baltimore, doubt. Stingrays have been deployed in thou- behavior.30 stingray sands of investigations around the country and Law enforcement officials often refer to “ have helped to locate violent suspects accused the War on Terror in their efforts to procure devices have of heinous crimes. stingray devices. Indeed, much of the fund- been used, The ability to surreptitiously track a sus- ing for these devices comes to state and local by one pect’s movements in real time, to locate a sus- law enforcement through federal homeland detective’s pect within a specific room of a larger build- security and defense grants, such as the Urban ing, or to identify a suspect in a large crowd is Areas Security Initiative (UASI).31 Competi- estimate, of obvious value to law enforcement.29 Insofar tion for this grant money invariably skews law more than as government officials have disclosed infor- enforcement priorities away from investigat- 4,300 times mation—often at the order of a court—regard- ing and preventing typical crimes and toward ing stingray use, it’s clear that many criminal national security functions. By signing onto in routine law investigations have been in some way assisted these federal initiatives, state and local police enforcement by the use of cell-simulator technology. are essentially pledging to take on federal law activities in But whether stingray technology is a valu- enforcement responsibilities in exchange for the city. able asset for law enforcement isn’t the end of being allowed to acquire federal resources. the inquiry. Investigative ease is not the sole For instance, in their application for stingray element to consider. The U.S. Constitution re- equipment in 2006, officials from the Michigan stricts the ability of the government to perform State Police stated that the technology would ” unreasonable searches and seizures. The Fourth be vital in allowing “the State to track the physi- Amendment’s warrant requirement makes it cal location of a suspected terrorist who is using clear that investigative power must be balanced wireless communications as part of their com- against an individual’s right to be secure in his munication.”32 In Tacoma, Washington, the person and property. Separation of powers and police cited the threat of improvised explosive checks and balances frustrate government effi- devices (IEDs) in their application for the tech- ciency in order to prevent abuse. nology.33 Perhaps needless to say, in the time In order to assess the stated justifications since the grant was approved, there is no evi- for stingray use and secrecy, the utility to law dence that stingray surveillance has been used enforcement must be weighed against estab- to avert improvised explosive device attacks in lished legal principles, such as privacy rights, Tacoma. the separation of powers, and due process. While police departments have been reluc- The efficiency of law enforcement is only a tant to reveal details about their use of stingray legitimate interest insofar as law enforcement devices unless forced to by court orders, the data stays within the bounds of the Constitution. thus far suggests that cases–such as the ones in The two most commonly asserted justifi- Michigan and Tacoma, Washington–represent cations for stingray use and secrecy relate to a trend. Departments around the country cite the War on Terror and the War on Drugs. Law terrorism to justify the grant money and the enforcement advocates of stingray devices licensing of the equipment but ultimately use consider the ability to surreptitiously track the devices for nonterrorism purposes. In Bal- the cell phones of drug traffickers and would- timore, stingray devices have been used, by one be terrorists an essential tool for maintaining detective’s estimate, more than 4,300 times in drug prohibition and combating terrorism. routine law enforcement activities in the city.34 The argument in support of the secrecy sur- A Freedom of Information Act release from rounding stingrays builds upon the same foun- the Tallahassee Police Department shows hun- dation. If terrorists and drug runners get wind dreds of routine uses, without a single terrorism of what stingrays are and how they operate, as investigation.35 the argument goes, then suspects will be able When government officials attempt to jus- 9 tify the acquisition of military-grade equip- FEDERALISM AND SEPARATION ment, appeals to bizarre and outlandish OF POWERS ‘Our threats are common, but occasionally officials When federal–state partnerships preclude application are candid about their motivations. When executive officers of state and local agencies “ Keene, New Hampshire, applied to the federal from informing judges, legislators, or the gen- talked about government for funding for a BearCat tactical eral public about their capabilities (or even the the danger vehicle by citing a terrorist threat to the an- fact that they’ve partnered with the federal of domestic nual town pumpkin festival, one city council government in the first place), separation of terrorism, member allowed: powers questions arise. These questions are especially acute in jurisdictions where the but that’s just Our application talked about the dan- stingray equipment was purchased through something ger of domestic terrorism, but that’s just federal security grant programs or using funds you put in something you put in the grant applica- taken from private individuals through civil tion to get the money. What red-blooded asset forfeiture.39 In such cases, it’s entirely the grant American cop isn’t going to be excited possible that the legislature is never consulted application about getting a toy like this? That’s what it at all, as no local appropriation is necessary. to get the 36 comes down to. When state and local law enforcement agen- money.’ — cies depend on federal funding for their equip- Terrorist attacks are simply not that com- ment and cut their local legislatures and courts Keene, mon, generating few opportunities for police out of the process, state and local control of New Hamp- to deploy stingrays in terrorism investiga- law enforcement is threatened.40 shire, city tions.37 Or perhaps terrorists, like drug traf- Similarly, insofar as the FBI’s nondisclosure fickers before them, long ago concluded that agreement prohibits law enforcement agents councilor cell phones were a potential surveillance li- and prosecutors from disclosing stingray uses ability and altered their communications. Re- or evidence to judges, or from accurately de- gardless, the fact is that there is little evidence scribing the devices in applications for warrants ” at the state or local level that stingray surveil- or pen/trap orders, the role of the judiciary in lance is being used to further the government’s overseeing and ensuring constitutional com- interest in combating terrorism. pliance by law enforcement has been seriously But even if it could be shown that stingray compromised. devices were being used by state and local law Perhaps most importantly, the secrecy enforcement to combat terrorism, the secrecy around these devices and the surreptitious regime could not be justified. means utilized by law enforcement to deploy Whatever tactical advantage the govern- them are having a deleterious effect on the ment gained by hiding the use and capabilities criminal justice system. When judges find of cell-site simulators in years past has been out that they’ve been misled into authorizing eroded by years of compelled revelations as a cell-site simulators, or when prosecutors are result of FOIA requests and court proceed- pressured to drop charges or dismiss evidence ings. Even if we assume that keeping these ca- rather than reveal stingray use, entire criminal pabilities secret at one time justified a regime cases fall apart.41 Dangerous criminals are put of immense secrecy, the secret is out now.38 back on the street or given overly favorable While it is conceivable that less sophisticated plea bargains by prosecutors merely to protect would-be terrorists are not keeping tabs on law an increasingly ill-kept secret, and to defend a enforcement’s technological capabilities, the law enforcement tactic that serves as an end- types of highly sophisticated terror and drug around traditional due process and separation organizations about whom the FBI’s nondis- of powers barriers. The traditional institutions closure agreement worries will have learned keeping the abuse of such tools in check have what they need to by now. been sidelined, and actual prosecutions of 10

criminals have been abandoned in the name of to the secrecy of law enforcement and the fed- The com- pursuing a hypothetical enemy. eral government, the stingray-utilizing agencies plete lack of The FBI has also encouraged constitution- themselves have in many cases done next to “ ally dubious practices at the state and local level. nothing to ensure the appropriate and consti- transparency In April 2016, a government watchdog organi- tutional use of these devices. regarding zation in Oklahoma revealed an agreement be- government tween the FBI and the Oklahoma City Police use of stingray Department for the acquisition of a stingray de- A LACK OF ACCOUNTABILITY vice.42 The FBI memo explains that, due to exi- The complete lack of transparency regard- technology gent circumstances, the use of a full nondisclo- ing government use of stingray technology guarantees sure agreement would be inappropriate and that guarantees that bad actors are not being held that bad actors the memo would serve in that capacity instead. accountable and that guidelines, where they ex- One provision of the memo states: ist at all, are not always being followed. are not being The federal government does not reveal held account- Information obtained through use of the which departments own or lease the devices; able and that equipment is FOR LEAD PURPOSES which departments are actively deploying them guidelines, ONLY, and may not be used as primary and how often; what, if any, guidelines govern evidence in any affidavits, hearings or them; or what mechanisms, if any, are in place where they trials. This equipment provides general to ensure the devices are used properly. Even if exist at all, are location information about a cellular de- guidelines were to be put in place, the lack of not always vice, and your agency understands it is re- transparency with which these devices have been quired to use additional and independent used suggests a dire need for strict and indepen- being investigative means and methods, such as dently enforced accountability mechanisms. followed. historical cellular analysis, that would be In October 2015, following several remark- admissible at trial to corroborate informa- able revelations regarding stingray surveillance, tion concerning the location of the target both the Department of Homeland Security ” obtained through use of this equipment.43 and the Department of Justice publicly out- lined their stingray policies for the first time. This technique, known as parallel construction, The policies include a requirement that allows law enforcement to obscure evidence federal law enforcement officials seek warrants sources to prevent their disclosure in court.44 for stingray use except under certain exigent The tactic is used to protect the identities of con- circumstances, a requirement that data be dis- fidential informants, but it can also be used to posed of routinely and when it is no longer hide evidence from judges or defendants. needed for a specific investigation, and a re- When utilizing parallel construction, law quirement that government agencies be open enforcement uses some surreptitious and, per- with courts about the use of the technology in haps, constitutionally dubious tactics to gener- criminal investigations.45 ate a piece of evidence. In order to obscure the It is important to note, however, that while source of that evidence, police will use the new these policies represent a step toward transpar- information as a lead to gather information ency on the part of the federal government, from which they construct a case that appears they are merely internal administrative policies. to have been cracked using routine police work. They do not carry the force of law, and enforce- The police then represent to the court and to ment of these guidelines is left entirely up to the defendant that the routine tactics led to the the executive agencies deploying the devices. break in the case. The secret evidence or tech- These guidelines also appear to apply only nique is not revealed. to devices being used by the federal govern- While legislatures and courts have been un- ment and have no bearing on the use of stingray able to provide oversight or accountability due devices that are in the hands of state and local 11 police, who remain free to set up their own devices is constantly being sent to third-party guidelines and accountability policies. service providers. With so much of our daily The judicial Without a full accounting of the capabilities activity being sent to third-party Internet and and legisla- of stingray devices and public acknowledgment telephone service providers, the level of con- “ of their use by each law enforcement agency, any stitutional protection afforded to such data be- tive branches, hope of imbuing the process with accountabil- comes a much more significant question than it tasked by our ity for misuse is fleeting. A reliance on executive was decades ago. system with agency self-policing and the assurances of police By the early 2000s, the Supreme Court was checking the agencies that they are not abusing their technol- wrestling with advances in police technology ogy is inadequate protection in lieu of consti- that allowed officers to peer through walls and power of the tutional safeguards. The judicial and legislative into the privacy of the home. In 2001, the Court executive branches, tasked by our system with checking decided Kyllo v. United States, in which agents branch, have the power of the executive branch, have impor- from the Department of the Interior utilized tant roles to play in limiting the abuses of sting- infrared heat imagers to look inside a private important ray surveillance and thus far have failed to do so. home in search of the hallmark heat signatures roles to play of a marijuana-growing operation. 49 The Court in limiting ruled that using “sense-enhancing technology” the abuses LEGAL STATUS OF WARRANTLESS to peer into private homes was a search within STINGRAY SURVEILLANCE the meaning of the Fourth Amendment and of stingray Understanding the issues raised by warrant- therefore required a warrant based upon prob- surveillance less stingray surveillance requires some back- able cause. and thus far ground on the Supreme Court precedents that A decade later, some members of the Court inform our current Fourth Amendment juris- had begun to question the applicability of the have failed to prudence. test in light of modern do so. In the 1967 case Katz v. United States, the technology. In 2012 the Supreme Court decided 50 Supreme Court ruled that a police wiretap of a U.S. v. Jones. Police and FBI agents, without phone booth was a search within the meaning of a warrant, snuck onto Jones’s property and ” the Fourth Amendment and required a warrant placed a global positioning system (GPS) track- because of the attempt of the defendant to keep er on his car. The Court ruled that the physical the conversation private.46 Justice Harlan, in a trespass onto Jones’s property represented a concurring opinion, laid out his understanding search. Perhaps the most notable aspect of the of the court’s ruling and included a reasonable Jones case was the concurring opinion by Justice expectation of privacy test, which has since be- Sonia Sotomayor, who finally raised the specter come the standard test in Fourth Amendment of rethinking the expectation of privacy test privacy jurisprudence. and doing away with the third-party doctrine: Roughly a decade later, in United States v. 47 48 Miller and Smith v. Maryland, the Court ar- More fundamentally, it may be necessary ticulated what has come to be known as the to reconsider the premise that an individ- third-party doctrine. Under third-party doctrine ual has no reasonable expectation of pri- analysis, the expectation of privacy disappears vacy in information voluntarily disclosed where the individual voluntarily conveys infor- to third parties. This approach is ill mation to third parties. But Miller and Smith suited to the digital age, in which people involved microfilms of bank deposits and a list reveal a great deal of information about of dialed phone numbers, respectively. In the themselves to third parties in the course modern context, the third-party doctrine can, as of carrying out mundane tasks. People the government argues, be applied much more disclose the phone numbers that they broadly, as almost all of the data emanating from dial or text to their cellular providers; cell-phones and other Web-connected mobile the URLs that they visit and the e-mail 12

addresses with which they correspond to That’s in large part because the courts have How many their Internet service providers; and the often been competing against a stacked deck criminal books, groceries, and medications they when it comes to policing cell-site simulators. “ purchase to online retailers. Perhaps, as Between the explicit provisions of the FBI suspects are JUSTICE ALITO notes, some people nondisclosure agreement and federal encour- going to turn may find the “tradeoff” of privacy for agement to keep relevant information from down a favor- convenience “worthwhile,” or come to courts, most judges have not had occasion to able plea deal accept this “diminution of privacy” as analyze the legal issues raised by stingray use. “inevitable,” and perhaps not. The FBI wields considerable control over just to have I for one doubt that people would ac- whether a particular case reaches a verdict, their Fourth cept without complaint the warrantless and therefore whether it is likely to result in a Amend- disclosure to the Government of a list of clear ruling from a judge on the constitutional- every Web site they had visited in the last ity of stingray use. Judges have a difficult time ment rights week, or month, or year. But whatever assessing the legality of police practices when analyzed by the societal expectations, they can attain the cases are routinely removed from court a judge who constitutionally protected status only if through plea bargains or dropped charges. How could send our Fourth Amendment jurisprudence many criminal suspects are going to turn down ceases to treat secrecy as a prerequisite a favorable plea deal just to have their Fourth them to for privacy. I would not assume that all Amendment rights analyzed by a judge who prison? information voluntarily disclosed to could send them to prison? some member of the public for a limited Despite this pervasive secrecy regime, in purpose is, for that reason alone, disenti- several criminal cases vigilant defense attorneys ” tled to Fourth Amendment protection.51 who questioned how the police found their cli- ents stumbled onto stingray investigations. While Sotomayor’s analysis did not receive What they managed to find suggests a wide- the support of a Court majority, it at least stands spread pattern of obfuscation and occasional as a signal that some on the Court are ready to deceit by the FBI and local law enforcement revisit an outdated privacy test in light of the cen- agencies to obscure their behavior from the trality of third-party data sharing to virtually ev- courts and from criminal defendants. ery aspect of our private lives in the 21st century. In one 2014 Arizona case, the City of Tucson Chief Justice Roberts, writing for a unanimous cited both “Harris corporation’s legal obligations court, made a similar observation about the cen- under federal law and its contractual obligations trality of cell phones to our private lives just two to the Federal Bureau of Investigation regarding years later in a case called Riley v. California: this technology” to attempt to avoid responding to a state freedom of information request.53 The These cases require us to decide how the city further asserted that the redactions from search incident to arrest doctrine applies the freedom of information response were made to modern cell phones, which are now at the behest of both Harris Corporation and the such a pervasive and insistent part of daily FBI, contradicting the FBI’s statements that its life that the proverbial visitor from Mars nondisclosure agreement does not require such might conclude they were an important secrecy.54 The city did, however, acknowledge feature of human anatomy. A smart phone that when using its stingray devices, the Tucson of the sort taken from Riley was unheard police sought neither warrants nor pen register of ten years ago; a significant majority of orders, meaning that the Tucson Police Depart- American adults now own such phones.52 ment was using the technology without judicial authorization or oversight.55 Federal and state courts have not yet had In a 2015 Baltimore case, a criminal defendant much opportunity to apply these principles. received a favorable plea deal after the city re- 13 fused to disclose stingray material “because the stingray devices.58 Utilizing common terms of Department of Justice prohibits the access and art for court orders, police will, for instance, re- In a country disclosure of these items.” The judge threatened fer to “confidential informants,” or “data from where more a detective with contempt proceedings after cit- telephone service providers” to justify applica- “ ing the nondisclosure agreement from the stand. tions for pen registers or warrants. These terms than 9 out of “You don’t have a non-disclosure agreement have traditional meanings in the legal system every 10 crimi- with the court,” Judge Barry Williams told him.56 that convey none of the novelty or magnitude nal defendants The cross-examination of a police officer of stingray surveillance. Judges, in other words, waive their from another Maryland case transcript reveals are sometimes authorizing stingray devices the position in which judges find themselves without knowing it.59 This deception makes it right to trial, in court. extremely difficult for judges to function in an potentially oversight role when it comes to stingray use. inadmissible Judge: It’s a simple question. Why was he The problem has become so pervasive that stopped? What was the, it was a warrant- defense attorney organizations are now offer- stingray less arrest. Why was he stopped? That’s ing explicit guidance to defense lawyers in order evidence can the question she’s asked. He can answer to ferret out stingray uses by police in criminal be used to put 60 the question. Why did you stop him? proceedings. pressure on The consequence of the secrecy, especially Police Officer: This kind of goes into the dropping of evidence or entire cases when defendants Homeland Security issues, Your Honor. called out on questionable stingray use, is a gen- without any eral dearth of case law on the constitutional is- risk of being Judge: Okay, if it goes into Homeland sues that stingrays present. As more has been Security issues, then the phone doesn’t revealed and the breadth of stingray use has be- revealed to come in. Okay. Step down, thank you. come more widely known, it is fair to anticipate the court. I mean this is simple. You can’t just stop that the amount of judicial analysis will increase. someone and not give me a reason, State, and A few courts have been able to weigh in on 57 you know that. (emphasis added). the constitutional implications of warrantless ” stingray use already. In 2013 a federal district But these revelations only arose in situations court in Arizona upheld the use of a stingray where defendants and their lawyers chose to go device in a tax fraud prosecution against a de- to trial in the first place and in trials where the fendant on the grounds that the police were defense attorney’s suspicions about surrepti- sufficiently descriptive in their warrant appli- tious police surveillance paid off. It stands to cation to satisfy Fourth Amendment require- reason, then, that the vast majority of criminal ments.61 Another federal district court, this cases in which stingray evidence is used, like time in Maryland, found that stingrays relied the vast majority of criminal cases generally, are only on information that had been voluntarily pled out before going to trial and often before conveyed to third parties and thus did not defense counsel has an opportunity to raise such constitute a search within the meaning of the questions. In a country where more than 9 out of Fourth Amendment.62 every 10 criminal defendants waive their right to At least one state-level appellate court has trial, potentially inadmissible stingray evidence disagreed with those federal rulings. In an can be used to put pressure on defendants with- opinion released in March 2016, the Court of out any risk of being revealed to the court. Special Appeals of Maryland held that using a In addition to stingray abuses that never stingray to locate a phone inside a home consti- make it in front of a judge, police have, some- tutes a search within the meaning of the Fourth times under express federal guidance, willfully Amendment and requires a warrant.63 misled courts regarding the nature of cell-site In that case, defendant Kerron Andrews simulator technology and the capabilities of was suspected of shooting three people. Police 14

sought and received a court order to use a pen/ searches. Any location capable of receiving a Legislators trap device to surveil Andrews’ phone. The po- cell tower signal is fair game to the stingray and have an lice, however, actually deployed a cell-site simu- indistinguishable from public areas with little “ lator—in this case a newer-generation device to no expectation of privacy. obligation to with the trade name HailStorm—in order to Stingray surveillance, then, represents a po- protect their track the physical location of Andrews’ phone tential flashpoint between two previously dis- citizens’ in real time. The police were able to track An- parate Fourth Amendment doctrines. As the privacy, and drews to a specific home in Baltimore. primary purpose of the devices is to track loca- Citing Kyllo, the court held that the use of tions through a technique that is obviously not they don’t a cell-site simulator to track a person’s location within the traditional sensory suite of a human need to wait inside a home violates a person’s reasonable ex- police officer, it is possible that the Supreme for the courts pectation of privacy. The court also held that Court would find that the “sense-enhancing the data being beamed from a person’s phone to technology” precedent of Kyllo is the more ap- to do that job a cell tower is not being “voluntarily conveyed,” propriate analytical framework than the third- for them. thus the third-party doctrine is inapplicable and party doctrine, even if Justice Sotomayor stands the data retains its constitutional protection. alone in her desire to revisit the third-party The court also found that police had misled doctrine itself. ” the judge by requesting a pen/trap order with- out explaining the full capabilities of the device. Insofar as the FBI’s nondisclosure agreement REMEDIES FOR WARRANTLESS contributed to that decision by law enforce- STINGRAY SURVEILLANCE ment, the court questioned the constitutional- If judges do take on a more active role in ity of the agreement itself. stingray oversight, that by itself may still be in- sufficient to protect the rights of individuals. We perceive the State’s actions in this Suppression of evidence gained in violation of a case to protect the Hailstorm technology, person’s Fourth Amendment rights is not guar- driven by a nondisclosure agreement to anteed to deter police misconduct, and courts which it bound itself, as detrimental to its have been hesitant to take more punitive mea- position and inimical to the constitutional sures against the state or its agents when they principles we revere.64 fail the existing Fourth Amendment tests. Legislators have an obligation to protect The few instances of courts assessing the their citizens’ privacy, and, as Justice Alito legality of stingray use have come to different pointed out in his concurrence in Riley, they conclusions, citing different precedents, and don’t need to wait for the courts to do that job it could be years before these splits in Fourth for them: Amendment interpretations are resolved. Even if courts are not ready to do away with Many forms of modern technology are the third-party doctrine entirely, the Kyllo making it easier and easier for both gov- precedent represents an interesting potential ernment and private entities to amass a conflict with the third-party line of reasoning wealth of information about the lives of in cell phone tracking cases. Indeed, stingrays ordinary Americans, and at the same time, do collect data from cell phone users, but os- many ordinary Americans are choosing to tensibly the primary use of that data is to trian- make public much information that was gulate the precise location of the phone rather seldom revealed to outsiders just a few de- than to analyze the content of the data itself. cades ago. This tracking capability inevitably includes In light of these developments, it the inside of homes and other areas tradition- would be very unfortunate if privacy pro- ally considered beyond the reach of warrantless tection in the 21st century were left pri- 15

marily to the federal courts using the blunt that sense, it is likely a fool’s errand to argue for instrument of the Fourth Amendment. an outright ban on police use of cell-simulator The efforts at Legislatures, elected by the people, are in technology. It’s possible to imagine a legitimate secrecy, the a better position than we are to assess and role for this technology in law enforcement’s “ respond to the changes that have already arsenal. But the efforts at secrecy, the lack of lack of occurred and those that almost certainly accountability, and the twisted incentives cre- accountability, will take place in the future.65 ated by federal meddling in state and local law and the enforcement beg for reform. twisted The courts establish a floor that privacy protec- At the executive level, federal and state tions cannot fall below, but legislators are free to agencies should be forthright and transparent incentives raise that floor on their own initiative, and there in their possession and use of stingray surveil- created by has been some progress on that front. lance devices, both with the relevant courts federal med- At the federal level, Rep. Jason Chaffetz and the general public. Even if one accepts the (R-UT) has introduced a bill that would make argument that extreme secrecy produced an dling in state the use of a stingray without a warrant a criminal advantage for law enforcement over terrorists and local law offence, except in some limited exigent circum- and drug cartels, that advantage has long since enforcement stances. The Stingray Protection Act goes well evaporated as criminal syndicates have altered beg for re- beyond merely suppressing tainted evidence. It their methods and the veil of secrecy has been would impose criminal liability, up to 10 years’ stripped from the technology. form. imprisonment, for anyone who improperly de- The FBI should disavow any suggestion ploys a stingray device.66 The bill has an arduous that hiding evidence from judges or defen- path to becoming law but clearly demonstrates dants is a condition of stingray acquisition. It ” that years of press and court revelations have put should also cease pressuring prosecutors to stingray abuse squarely on the agenda of some drop cases in order to protect the existence legislators. and capabilities of cell-site simulators. Additionally, several states have taken steps At the judicial level, Fourth Amendment to curb warrantless stingray use. The California jurisprudence governing the privacy protec- state legislature recently passed a bill imposing a tions of cell phone data is in desperate need of warrant requirement on state and local stingray Supreme Court analysis. Lower courts seem use in California,67 while states such as New York confused about which analytical framework to and Missouri are considering similar legislation.68 apply to stingray cases and how the technology These efforts affirm the traditional consti- should be assessed within those frameworks. tutional responsibility of state governments Courts at all levels should reject state secrecy for law enforcement. State legislatures have the arguments that deny judges and defense teams power to correct many of the problems raised access to information about stingray capabili- by secretive stingray use, whether through ties and usage. forbidding state and local law enforcement to State legislative bodies should be wary of participate in federal militarization or transfer federal encroachment into a role traditionally programs or imposing strict requirements on occupied by state and local governments. The the use of surveillance devices. use of federal security grants to equip state and local law enforcement, the use of federal nondisclosure agreements to hide the behav- CONCLUSION ior of state and local agents from judicial and Technological advancements in law enforce- legislative oversight, and the inevitable twist- ment are inevitable. The government’s ability ing of law enforcement priorities that accom- to surreptitiously monitor the private commu- panies such incentive programs are all reasons nications of Americans will develop as quickly for caution in allowing agencies to participate as the means of communication themselves. In in these federal programs. Legislatures should 16

require law enforcement agencies to publish 6. Kim Zetter, “U.S. Marshals Seize Cops’ Spying stingray policies that detail the circumstances Records to Keep Them from the ACLU,” Wired, under which stingray use is authorized, to pub- June 3, 2014, https://www.wired.com/2014/06/ lish data retention guidelines, and to resolve feds-seize-stingray-documents/. to seek a warrant or a probable cause analogue before deploying stingrays. 7. Kim Zetter, “Emails Show Feds Asking Florida Stingray surveillance raises many novel po- Cops to Deceive Judges,” Wired, June 19, 2014, litical and legal issues, yet cell phone trackers https://www.wired.com/2014/06/feds-told-cops- are only the vanguard. Police technology will to-deceive-courts-about-stingray/. continue to become more expansive and pow- erful, and the longer it takes legislatures and 8. U.S. Const. amend. IV. courts to produce a legal framework capable of keeping up with technology and ensuring that 9. See Katz v. United States, 389 U.S. 347 (1967). constitutional rights are protected, the more threatening the surveillance state will become. 10. See Smith v. Maryland, 442 U.S. 735 (1979).

11. 18 U.S.C. 3123 describes the relevant legal stan- dards for use of pen registers or trap and trace de- NOTES vices. 1. The gun turned out to be a BB gun, but for pur- poses of armed robbery statutes it is treated as a 12. For more detail on the technical capabilities firearm. of Stingray devices, see Stephanie K. Pell and Christopher Soghoian, “Your Secret Stingray’s 2. Ellen Nakashima, “Secrecy around Police Sur- No Secret Anymore: The Vanishing Government veillance Equipment Proves a Case’s Undoing,” Monopoly over Cell and Its Washington Post, February 22, 2015, https://www. Impact on National Security and Consumer Pri- washingtonpost.com/world/national-security/ vacy,” Harvard Journal of Law & Technology 28, no. secrecy-around-police-surveillance-equipment- 1 (Fall 2014): 8–19; see also, Sam Biddle, “Long- proves-a-cases-undoing/2015/02/22/ce72308a- Secret Stingray Manuals Detail How Police Spy b7ac-11e4-aa05-1ce812b3fdd2_story.html. on Phones,” The Intercept, September 12, 2016, https://theintercept.com/2016/09/12/long-secret- 3. The term “stingray” is often used as an umbrel- stingray-manuals-detail-how-police-can-spy-on- la term to refer to an entire family of cell phone phones/. surveillance devices that may go by other trade names, such as “KingFish,” “HailStorm,” or “Log- 13. For instance, if law enforcement is using the gerhead.” stingray to monitor a demonstration in which no individual is suspected of any wrongdoing suf- 4. American Civil Liberties Union, “Stingray ficient to justify a pen register, a stingray would Tracking Devices: Who’s Got Them?” ACLU. allow law enforcement to learn the identity and org., https://www.aclu.org/map/stingray-tracking- phone information of the attendees, which could devices-whos-got-them. be used to facilitate further surveillance.

5. American Civil Liberties Union, “War Comes 14. United States v. Rigmaiden, 844 F. Supp.2d 982, Home: The Excessive Militarization of Ameri- 996 (D. Ariz. 2012). can Policing,” ACLU.org, June 2014, https://www. aclu.org/sites/default/files/assets/jus14-warcome 15. Department of Justice Electronic Surveillance shome-report-web-rel1.pdf, p. 26. Manual (Jan 2, 2008), p. 17. 17

16. “Department of Justice Policy Guidance: Use 23. A point of clarity: in the New York court sys- of Cell-Site Simulator Technology,” United States tem, a supreme court is not the highest court. Department of Justice, Office of Public Affairs, That distinction belongs to the New York State http://www.justice.gov/opa/file/767321/download. Court of Appeals.

17. Including the Bureau of Alcohol, Tobacco, Fire- 24. New York Civil Liberties Union v. Erie County arms and Explosives (ATF); the Department of Sheriff ’s Office, State of New York Supreme Court, Homeland Security (DHS); the Federal Bureau of Index No. 2014/000206, March 17, 2015, http:// Investigation (FBI); and the U.S. Marshals Service, www.nyclu.org/files/releases/ErieCoStingray but excluding agencies under the Department of Win_3.17.15.pdf. Homeland Security, such as the U.S. Immigration and Customs Enforcement (ICE), the U.S. Secret 25. Agreement between FBI and Scott R. Patronik, Service, and the Transportation Security Adminis- Chief of Erie County Sheriff’s Office, June 29, 2012, tration (TSA). http://nyclu.org/files/20120629-renondisclsure- obligations(Harris-ECSO).pdf. 18. FBI response to Freedom of Information re- quest by Electronic Privacy Information Center, 26. Ibid. February 2013, https://epic.org/foia/fbi/stingray/ FBI-FOIA-Release-02072013-OCR.pdf. 27. Ellen Nakashima, “FBI Clarifies Rules on Se- cretive Cellphone-Tracking Devices,” Washington 19. Nicky Woolf and William Green, “IRS Pos- Post, May 14, 2015, https://www.washingtonpost. sessed Stingray Gear, com/world/national-security/fbi-clarifies-rules- Documents Reveal,” Guardian (London), October on-secretive-cellphone-tracking-devices/2015/05 26, 2015, http://www.theguardian.com/world/2015/ /14/655b4696-f914-11e4-a13c-193b1241d51a_story. oct/26/stingray-surveillance-technology-irs-cell html. phone-tower. 28. FCC letter to Phil Mocek of MuckRock News, 20. American Civil Liberties Union, “Stingray October 2, 2014, https://www.muckrock.com/news/ Tracking Devices: Who’s Got Them?” archives/2014/oct/08/fcc-fbi-cant-agree-stingray- nda/. “We do not require that state and local law en- 21. Nathan Freed Wessler, “Documents Suggest forcement agencies have to complete one or more Maker of Controversial Surveillance Tool Misled non-disclosure agreements with the Federal Bureau the FCC,” American Civil Liberties Union, Sep- of Investigation prior to acquisition and/or use of tember 17, 2014, https://www.aclu.org/blog/docu the authorized equipment.” ments-suggest-maker-controversial-surveillance- tool-misled-fcc?redirect=blog/national-security/ 29. See Testimony of Elana Tyrangiel, Principal documents-suggest-maker-controversial-surveil Deputy Assistant Attorney General at the De- lance-tool-misled-fcc. partment of Justice and Seth M. Stodder of the Department of Homeland Security before House 22. Federal Communications Commission, “Grant Subcommittee on Interior, October 21, 2015. of Equipment Authorization to Harris Corpora- tion,” March 2, 2012. “(1) The marketing and sale of 30. The concern is explicitly mentioned in the these devices shall be limited to federal, state, local nondisclosure agreement itself, which states public safety and law enforcement officials only; that disclosure would empower surveillance tar- and (2) State and local law enforcement agencies gets to “employ countermeasures to avoid detec- must advance coordinate with the FBI the acqui- tion.” Supra, note 24. sition and use of the equipment authorized under this authorization.” 31. The efficacy of programs such as the Urban 18

Areas Security Initiative (UASI) has been called Department’s Secret Budget,” Chicago Reader, Sep- into question by efficiency hawks such as former tember 29, 2016, http://www.chicagoreader.com/ Senator Tom Coburn (R-OK), who paints a damn- chicago/police-department-civil-forfeiture-inves ing portrait of the program’s waste. See Tom Co- tigation/Content?oid=23728922. burn, “Safety at Any Price: Assessing the Impact of Homeland Security Spending in U.S. Cities,” 40. Even when the funding sources are local, as December 2012, https://info.publicintelligence. in the case of civil forfeiture funds, the agencies net/SenatorCoburn-UASI.pdf. still must coordinate their acquisition and use of stingray equipment with the federal government. 32. Nathan Freed Wessler, “Police Citing ‘Ter- rorism’ to Buy Stingrays Used Only for Ordinary 41. Robert Patrick, “Controversial Secret Phone Crimes,” American Civil Liberties Union, October Tracker Figured in Dropped St. Louis Case,” St. 23, 2015, https://www.aclu.org/blog/free-future/ Louis Post-Dispatch, April 19, 2015, http://www. police-citing-terrorism-buy-stingrays-used-only- stltoday.com/news/local/crime-and-courts/ ordinary-crimes. controversial-secret-phone-tracker-figured- in-dropped-st-louis-case/article_fbb82630- 33. Privacy SOS, “Police Are Using a Powerful aa7f-5200-b221-a7f90252b2d0.html; Ellen Na- Surveillance Tool to Fight the War on Drugs, not kashima, “Secrecy around Police Surveillance Terrorism,” October 15, 2014, https://privacysos. Equipment Proves a Case’s Undoing,” Washington org/node/1554. Post, February 22, 2015, https://www.washington- post.com/world/national-security/secrecy-around-po 34. Justin Fenton, “Baltimore Police Used Secret lice-surveillance-equipment-proves-a-cases- Technology to Track Cellphones in Thousands of undoing/2015/02/22/ce72308a-b7ac-11e4-aa05- Cases,” Baltimore Sun, April 9, 2015, http://www. 1ce812b3fdd2_story.html; and Justin Fenton, “Bal- baltimoresun.com/news/maryland/baltimore- timore Police Used Secret Technology to Track city/bs-md-ci-stingray-case-20150408-story.html. Cellphones in Thousands of Cases,” Baltimore Sun, April 9, 2015, http://www.baltimoresun.com/ 35. See the master list of stingray deployments news/maryland/baltimore-city/bs-md-ci-sting by the Tallahassee Police Department, March 27, ray-case-20150408-story.html. 2014, Fusion, https://fusiondotnet.files.wordpress. com/2015/02/03.27.2014_-_master_ce_log.pdf. 42. Clifton Adcock, “Okla. Authorities Have or Use Controversial Cellphone Tracker,” Oklaho- 36. American Civil Liberties Union, “War Comes ma Watch, April 10, 2016, http://oklahomawatch. Home: The Excessive Militarization of American org/2016/04/10/okla-authorities-have-or-use- Policing,” ACLU, June 2014, https://www.aclu.org/ controversial-cell-phone-tracker/. report/war-comes-home-excessive-militarization- american-police, p. 26. 43. “Approved Non-Disclosure Notice,” from the FBI to the Oklahoma City Police Department, 37. See John Mueller, “Is There Still a Terrorist August 7, 2014, https://assets.documentcloud.org/ Threat? The Myth of the Omnipresent Enemy,” documents/2825761/OKCPDFBI-MOU.pdf. Foreign Affairs, September/October 2006, https:// www.foreignaffairs.com/articles/2006-09-01/there- 44. Or, less charitably, “evidence laundering.” In still-terrorist-threat-myth-omnipresent-enemy. an email response to the revelations, ACLU Staff Attorney Nathan Wessler stated: “This is the 38. See Pell and Soghoian, “Your Secret Stingray’s first time I have seen language this explicit in an No Secret Anymore.” FBI non-disclosure agreement. The typical non- disclosure agreements order local police to hide 39. Joel Handley et al., “Inside the Chicago Police information from courts and defense attorneys, 19 which is bad enough, but this goes the outrageous 55. Ibid., p. 5. extra step of ordering police to actually engage in evidence laundering. Instead of just hiding 56. Justin Fenton, “Legal Challenge Alleges Au- the surveillance, the FBI is mandating manufac- thorities Withheld Police Use of Stingray Sur- ture of a whole new chain of evidence to throw veillance,” Baltimore Sun, September 4, 2015, defense attorneys and judges off the scent. As a http://www.baltimoresun.com/news/maryland/ result, defendants are denied their right to chal- baltimore-city/bs-md-ci-stingray-challenge- lenge potentially unconstitutional surveillance 20150904-story.html/. and courts are deprived of an opportunity to curb law enforcement abuses.” See Jenna McLaugh- 57. C. Justin Brown and Kasha M. Lee, “StingRay lin, “FBI Told Cops to Recreate Evidence from Devices Usher in a New Fourth Amendment Bat- Secret Cell-Phone Trackers,” The Intercept, May tleground,” The Champion, National Association 5, 2016, https://theintercept.com/2016/05/05/fbi- of Criminal Defense Lawyers, June 2015, p. 13. told-cops-to-recreate-evidence-from-secret-cell- phone-trackers/. 58. Kim Zetter, “Emails Show Feds Asking Flori- da Cops to Deceive Judges.” 45. See Testimony of Seth M. Stodder, Assistant Secretary, Threat Prevention and Security Policy 59. As former U.S. Magistrate Judge Brian Owsley Office of Policy U.S. Department of Homeland explains, pen/trap applications using such vague Security, testifying before the Committee on terminology can deceive judges into believing they Oversight and Government Reform Subcommit- are authorizing traditional pen registers or trap and tee on Information Technology, October 21, 2015. trace devices, when in fact law enforcement plans See also Testimony of Elana Tyrangiel, Principal to use the authorization to deploy much more in- Deputy Assistant Attorney General Before the vasive cell-site simulators. See Larry Greenemeier, Subcommittee on Information Technology, Com- “What Is the Big Secret Surrounding Stingray Sur- mittee on Oversight and Government Reform, veillance?” Scientific American, June 25, 2015, http:// U. S. House of Representatives, October 21, 2015. www.scientificamerican.com/article/what-is-the- big-secret-surrounding-stingray-surveillance/. 46. Katz v. United States, 389 U.S. 347 (1967). 60. Brown and Lee, “StingRay Devices Usher in a 47. United States v. Miller, 425 U.S. 435 (1976). New Fourth Amendment Battleground,” pp. 12–20.

48. Smith v. Maryland, 442 U.S. 735 (1979). 61. United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Arizona 2012). 49. Kyllo v. United States, 533 U.S. 27 (2001). 62. United States v. Graham, 846 F. Supp. 4d 284 (D. 50. United States v. Jones, 132 S. Ct. 945 (2012). Md. 2012).

51. United States v. Jones, 132 S. Ct. 945 (2012). 63. State of Maryland v. Andrews (2015). Court of Special Appeals of Maryland, No. 1496, Sept. 52. Riley v. California, 573 U.S. ___ (2014) at 8. Term 2015. Filed March 30, 2016.

53. Hodai v. The City of Tucson, Superior Court of 64. Ibid., at p. 25. the State of Arizona, No. C20141225, City’s veri- fied answer, p. 2, par. 10 65. Riley v. California, 573 U.S. ___ (2014) at con- currence p. 6. 54. Ibid., p. 4. 66. Nicky Woolf, “Congressman Introduces Bill to 20

End Warrantless Stingray Surveillance,” Guardian new-law-mandating-warrant-for-stingray-use/. (London), Nov. 4, 2015, http://www.theguardian. com/world/2015/nov/04/house-bill-end-warrant 68. Mike Maharrey, “Missouri Bill Would Ban less-stingray-surveillance-jason-chaffetz. Warrantless Use of Stingray Devices, Hinder Federal Surveillance Program,” Tenth Amend- 67. Cyrus Farivar, “California Governor Signs New ment Center, December 18, 2015, http://blog. Law Mandating Warrant for Stingray Use,” Ars tenthamendmentcenter.com/2015/12/missouri- Technica, Oct. 8, 2015, http://arstechnica.com/ bill-would-ban-warrantless-use-of-stingray- tech-policy/2015/10/california-governor-signs- devices-hinder-federal-surveillance-program/.