Secret Technology Flouts Wiretap Laws
“‘Inhibiting law enforcement’s rights are second to protecting mine!’ (Florida Circuit Court Judge Frank) Sheffield thundered, gesturing with both hands and fixing his gaze on the prosecutor.”
That is how the Washington Post described a Florida judge’s response to a prosecutor who tried to deny a defendant information about sophisticated wiretapping gear police use to tap cellular phones.
Police had used the device to locate a suspect’s phone in a small-time robbery case. A prosecutor said court oversight might inhibit law enforcement.
The device in question is called Stingray – a piece of gear that intercepts cell phone signals. In the Florida case, the device was not used to snoop on contents of a phone call. Instead, police had used it as a highly reliable tracking device to locate a suspect by finding his cell phone.
At least 48 agencies in 20 states across the U.S. now own the suitcase-sized devices, according to an ACLU report that likely underestimates how many are in use. The devices have become the subject of freedom of information requests followed by lawsuits (EPIC v FBI, ACLU v Sarasota ). Recent responses to one of those actions revealed police in Florida alone spent millions of dollars on the devices, and used them in hundreds of investigations.
Stingray: A New Brand of Wiretap
Because recent media reports about the new surveillance technology coincided with leaked disclosures about National Security Agency surveillance, it would be easy to lump the wireless wiretap devices into the same broad category of intrusive government surveillance. To the contrary, there are important differences.
Without downplaying concern about network surveillance used on American citizens to ostensibly support national security goals, it is important to recognize that cell phone surveillance for domestic law enforcement is an entirely different ball game.
The differences begin with the way Stingrays work. The devices, small enough to carry in a vehicle, transmit signals that trick nearby cell phones into thinking the Stingray is a legitimate cell tower. It’s a big-kid’s version of the Evil Twin Attack used to grab information from unsuspecting users on WiFi networks.
A cell phone typically answers the tower’s signal without the cell phone owner’s knowledge. The device can use those responses to identify every cell phone within range operating on that network.
Once the target phone is isolated, the device can require it to transmit at higher power, potentially even draining the user’s battery. Transmissions can be used as direction finding aids even if a call is not underway.
The fake cell tower’s hyperlocal functionality is what sets it apart from NSA bulk data collection programs lately under fire for going too far. National security snooping undoubtedly involves ground games that sometimes use fake cell towers, but the vast majority of problematic NSA data is gathered in distant darkened rooms, where commercial communication provider’s signals are split off for the convenience of NSA spooks.
The Stingray, on the other hand, operates at your front door. NSA data is gathered by federal employees under the arguably dubious supervision of the Foreign Intelligence Surveillance Court of Review. Stingrays are used by local police, often with thin supervision and perhaps far more often than not, without court approval.
Even in light of recent revelations that the NSA has sought court orders requiring phone companies to provide the NSA complete pen register data for everybody’s phone calls, all the time, local police agencies’ use of fake cell towers is different – technologically, and legally.
NSA surveillance ostensibly targets foreign threats. The agency tends to (or claims to) ignore whatever domestic chatter its giant electronic ears overhear.
For legal purposes, similarities arise when the NSA leaks information to domestic law enforcement agencies, which then use a ruse known as parallel construction that hides the true source of information used to build a case. The legal sleight of hand covers up Fourth Amendment violations.
Parallel Construction Hides High-Tech Surveillance
A similar strategy appears to be standard operating procedure for law enforcement agencies using Stingray surveillance. In cases where police do not want to bother telling a court about questionable investigative techniques, they sometimes construct a parallel investigative narrative that has them making the case without the help of dubious methods.
In the Florida case where Judge Sheffield upbraided prosecutors, police had obtained a court order for cell phone records that could help locate a suspect. Problem was, those cell phone records could not place the suspect at a particular place at a particular time. The Stingray could.
Defense attorneys pressed an investigator to admit that cell phone records alone could not have located their defendant. Between the legally obtained cell phone records and a very vague description, police had no convincing reason to approach the suspect.
At first, an investigator claimed information from a proprietary database had pointed to the address where police began tracking the suspect. But that data could not locate the unregistered phone at that address, and not to any address in real time.
Under further probing, the investigator acknowledged his department used direction finding equipment to isolate the cell phone the victim had identified. That direction finder was an IMSI catcher – an International Mobile Subscriber Identity eavesdropping device such as those Harris Corporation markets as Stingrays.
In the Florida case, the defense probe of cop’s high-tech surveillance gear ended when prosecutors offered defendants a bargain – probation – when the case could have netted them four years in prison or more.
Warrantless Searches Usurp Judicial Authority
A recent letter to the Justice Department from members of the Senate Judiciary Committee summarized reasons the FBI claims no warrant is needed for many of the typical ways Stingrays are used. A warrant is required, the FBI admits, but claims no warrant is required when “the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.”
Stop. Back up. Did they just say the FBI “deems” when and where you or I have no reasonable expectation of privacy?
Last time I checked, the FBI was still an executive agency. Our judicial branch – not the executive – deems where our reasonable expectations of privacy begin and end.
Courts have repeatedly addressed questions about expectations of privacy over communications networks. Prevailing precedents allow police to obtain from phone companies a list of numbers that exchanged phone calls with a particular number based only on a court order with no reference to a particular investigation.
Such pen register orders typically involve no more than a police officer’s statement that the order could help an investigation. A search warrant typically requires investigators to provide the court particular information about particular crimes under investigation.
A search warrant would be required to intercept contents of calls, under more protective search-and-seizure provisions of the Fourth Amendment. But the U.S. Supreme Court in Smith v. Maryland, 442 U.S. 735 (1979) determined that pen registers trap only information a phone company would already have on hand, so they do not comprise a search.
At least among Stingray cases that have been discussed in media reports, police do not bother even with a court order. From a practical perspective, police have no need to show a phone company a court order because police can gather the information on their own.
From a legal perspective, prosecutors may claim the Electronic Communications Privacy Act only requires court orders for pen registers – not for use of fake cell phone towers. 18 U.S.C. § 3213(a)(1). In so far as police can construct a plausible explanation for how they developed a case without admitting they used Stingray wiretap equipment, police can avoid answering to the judiciary about how they snoop on citizens.
The fact that police track phone traffic without the help of phone companies, however, undermines the Smith presumption that information phone companies collect is not private. Prior to Smith, Katz v. United States, 389 U.S. 347 (1967) established that technological intrusion comprises a search, for which a warrant is required.
Police, courts, defense attorneys and privacy advocates might also care to review the Wiretap Act. 18 U.S.C. § 2511. To obtain a wiretap order, police must show probable cause to believe the target is involved in a broadly defined set of crimes. 18 U.S.C. § 2518. A wiretap order requires a stronger basis than a pen register order, which can be based merely on investigator’s belief that the data is likely to be used in an ongoing investigation.
Free Consultation: Tulsa Criminal Defense Lawyer
When you are charged with a crime, you have a right to examine evidence used against you, including details of how police investigated the alleged crime. When police use unauthorized surveillance equipment, your rights might be violated by the illegal use of unauthorized equipment, or by their refusal to fully disclose how they made their case.
Whether you enjoy your rights often depends on your legal representation. A criminal defense attorney not satisfied with specious answers can provide the protection for your constitutional rights. For a free consultation with a Tulsa criminal defense lawyer, call Wirth Law Office at (918) 879-1681 or send your question using the form at the top of this page.