U.S. House Oversight Committee: Stingray Surveillance Violates Constitution

By Derrick Broze

The U.S. House Oversight and Government Reform Committee has released a damning new report on law enforcement’s growing use of ‘stingray’ cell phone surveillance tools. 

On Monday, the U.S. House Oversight and Government Reform Committee released a new report that calls for improved oversight and guidelines for law enforcement use of cell site simulators, sometimes known as “Stingrays.” Stingray is the brand name of a popular cell-site simulator manufactured by the Harris Corporation.

The Electronic Frontier Foundation describes Stingrays as “a brand name of an IMSI (International Mobile Subscriber Identity) Catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cell phone tower – to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not – and tricks your phone into connecting to it.”

This allows the officer who is in possession of the Stingray to know who, when, and to where you are calling, the precise location of every device within the range, and with the latest models,  capture the content of your conversations. As the use of Stingrays has grown quickly in the last five years, the public has largely remained in the dark as investigative journalists work to expose the technology. The issue has finally become mainstream with the latest report from the House Oversight Committee.

The report, “Law Enforcement Use of Cell-Site Simulation Technologies: Privacy Concerns and Recommendations,” notes that the U.S. Department of Justice has 310 cell site simulators spread across several agencies, including the FBI and U.S. Marshals Service. The DOJ spent more than $71 million cell site simulator technology and upgrades between 2010 and 2014. According to the report The Department of Homeland Security has 124 cell-site simulators.

The committee also called on state and local officials to adopt policies similar to those recently enacted by the Department of Justice. In addition, the committee recommend that law enforcement be more forthcoming with judges when they request approval for the use of the devices.

“Congress should establish a legal framework that governs government agencies, commercial entities, and private citizens’ access to and use of geolocation data, including geolocation data obtained by the use of a cell-site simulator,” reads the report, written by Reps. Jason Chaffetz, Utah Republican, and Elijah E. Cummings, Maryland Democrat.

The committee also called attention to the likely unconstitutionality of the use of Stingray surveillance, especially in light of the fact that most law enforcement agencies do not typically acquire warrants before using the devices.

“While law enforcement agencies should be able to utilize technology as a tool to help officers be safe and accomplish their missions, absent proper oversight and safeguards, the domestic use of cell-site simulators may well infringe upon the constitutional rights of citizens to be free from unreasonable searches and seizures, as well as the right to free association,” the committee wrote.

The report also notes that, according to a 1997 DOJ guidance bulletin, the DOJ believes that “it does not appear that there are constitutional or statutory constraints on the warrantless use of such a device.”

Another issue the committee looked at involves the use of non-disclosure agreements. Both the Harris Corp. and the FBI require police to sign non-disclosure agreements (NDA) related to the use of the devices. Through these NDAs local police departments have become subordinate to Harris, and even in court cases in front of a judge, are not allowed to speak on the details of their arrangements. Due to this secrecy, very little has been known about how exactly the Stingrays work. The committee’s report stated that the NDAs “should be replaced with agreements that require clarity and candor to the court whenever a cell-site simulator has been used by law enforcement in a criminal investigation.”

The issue is likely to make its way to the Supreme Court for a final decision on whether or not Stingray surveillance requires. In June Activist Post reported that the U.S. Court of Appeals for the 4th Circuit has ruled that police can legally gather “cell site” location information (CSLI) without judicial approval via a search warrant. The 4th Circuit made the ruling based on rules implemented before the growth of cellphones and computers which allow law enforcement to collect business or “third party” records without a court order. The rules were originally intended to govern banking transactions and phone calls made by a traditional landline.

While the public waits for the politicians and legal scholars to figure out if the State has a right to intercept your communications, it is up to every individual to pursue technologies that protect our freedom and privacy. We must also support technologies that can combat and deter the invasive use of spy tools. Without privacy there can be no freedom. We are watching the very rapid erosion of our privacy. Whether the concept survives into the next generation depends on the actions we each take today.

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Derrick Broze is an investigative journalist for ActivistPost.com and the founder of the TheConsciousResistance.com. Follow him on Twitter. Derrick is the author of three books: The Conscious Resistance: Reflections on Anarchy and Spirituality and Finding Freedom in an Age of Confusion, Vol. 1 and Finding Freedom in an Age of Confusion, Vol.  Derrick is available for interviews. Please contact Derrick@activistpost.com