Yet another police department has been revealed to have been using so-called “Stingray” cell phone surveillance tools without the use of a warrant, and using questionable judicial authority.
New documents reveal that since acquiring a Stingray in late 2012, the San Bernardino Sheriff’s Department has used the device 303 times between January 1, 2014 and May 7, 2015.
The Stingray is 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. As a result, the government can figure out who, when and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations.
Police officers can use the devices to track your cellphone signal. Once the signal is located, the stingray can provide a general location on the map and police officers can drive around (or in one case, walk door to door) until they get a signal from your phone. Police departments have also begun requesting updated equipment that will upgrade “the Stingray system to track 4G LTE Phones”, as AT&T and other cellular providers prepare to shut down their 2G networks. This has civil liberties advocates up in arms over the potential for misuse of the tools.
The San Bernardino Sheriff’s Department (SBSD) responded to public records requests, sent by Ars Technica and other outlets, by releasing an example of a template for a “pen register and trap and trace order” application. Ars Technica reports on “pen register” orders:
“Detectives typically go to a local judge before they want to deploy the device and file an application for a “pen register and trap and trace order.” Those orders are often sealed, even well after the case has concluded, so there is usually little public scrutiny.
In the pre-cellphone era, a “pen register and trap and trace order” allowed law enforcement to obtain someone’s calling metadata in near real-time from the telephone company.”
Lawyers for the county released a document that they claimed was a warrant application template. The application does not offer any legal authority on which the Sheriff’s base their activities.
“This is astonishing because it suggests the absence of legal authorization (because if there were clear legal authorization you can bet the government would be citing it),” Fred Cate, a law professor at Indiana University, told Ars by e-mail.
“Alternatively, it might suggest that the government just doesn’t care about legal authorization. Either interpretation is profoundly troubling,” he said.
Nathan Wessler, an attorney with the American Civil Liberties Union, told Ars that, “the template is likely to mislead judges who receive applications based on it because it gives no indication that the Sheriff’s Department intends to use a stingray.”
“We have seen similarly misleading applications submitted to judges by police departments across the country,” he continued. “Judges have no hope of ensuring that use of stingrays complies with the Fourth Amendment if they are kept in the dark about law enforcement’s intent to use a stingray. When police hide the ball from judges, our justice system cannot ensure justice.”
In mid-March, Anti-Media reported that a New York Supreme Court judge ruled that the Erie County Sheriff’s Office must comply with public records requests on Stingray cell phone surveillance.
The American Civil Liberties Union of New York sued the Sheriff’s Office after the department failed to respond to requests regarding how the devices are used. Justice Patrick NeMoyer sided with the NYCLU and ruled that the Sheriff’s office must hand over the data. NYCLU Staff Attorney Mariko Hirose said the decision “confirmed that law enforcement cannot hide behind a shroud of secrecy while it is invading the privacy of those it has sworn to protect and serve.”