The ACLU has identified 75 agencies in 27 states plus the District of Columbia that own invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick devices into transmitting their locations and identifying information.
There are a lot of unknowns about the use of stingray tracking devices by state and local police departments because many agencies continue to shroud their purchase and use of the systems in secrecy.
We are living in an age of dramatic technological progress that has brought about many conveniences and advantages, but the rash of new spying and surveillance technologies threaten to deprive Americans of their rights to justice, freedom and privacy.
Evidence of police hiding their use of invasive mass surveillance technology from defense attorneys, judges, and the public is widespread.
These surveillance technologies include new or improved imaging devices, location-tracking devices, communications eavesdropping systems, and new means of collecting ever-more-granular data of all kinds about individuals and their activities.
The Federal Bureau of Investigation refused to confirm or deny if it is requiring local police to sign strict nondisclosure agreements prior to purchasing invasive cell phone technology, but in 2015, FBI spokesman Christopher Allen acknowledged that local police officers testified in a number of criminal cases that arrangements made with the FBI forbid them from acknowledging the use of secret devices.
Cell-site simulators, also called international mobile subscriber identity (IMSI) catchers, are boxes about the size of a small suitcase that simulate a cellphone tower.
They force mobile phones in their vicinity to transmit their phone numbers and unique electronic serial numbers. In so doing, they collect identifying information not just about a suspect’s phone but also about the phones of potentially hundreds of law-abiding citizens.
They permit police to track individuals even when they’re somewhere that’s typically protected from warrantless searches, like a home. Regardless of law enforcement’s intended target, cell site simulators collect data from all phones in their vicinity and can also interfere with nearby phones’ connections to the cellular network.
For decades, law enforcement agencies across the country have used stingrays to locate and track people in all manner of investigations, from local cops in Annapolis trying to find a guy who nabbed 15 chicken wings from a delivery driver, to ICE tracking down undocumented immigrants in New York and Detroit.
Until a few years ago, even the existence of this technology was shrouded in near-complete secrecy.
In 2020, L3Harris Technologies, formerly known as the Harris Corporation, notified police agencies that it planned to discontinue sales of its controversial “Stingray” device quietly announced last year it would no longer sell equipment directly to local law enforcement at the local level.
Law enforcement agencies have subsequently turned to surveillance technology manufactured by a Canadian firm named Octasic, which supplies cell-site simulators known as the Nyxcell V800/F800 TAU.
As it turns out, the FBI went to great lengths to prevent knowledge of cell-site simulators from entering public awareness, requiring state and local law enforcement agencies to sign nondisclosure agreements before purchasing the technology — a practice it now refuses to confirm or deny.
The New Jersey State Police spent at least $850,000 on a technology that allows troopers to track cell phone use without phone owners knowing, according to a 2017 report based on heavily redacted documents obtained through a right-to-know request.
The New Jersey state police did not respond to requests to discuss their use of the technology, and the more than 100 pages of invoices and other documents were heavily redacted to hide how troopers use the devices.
The FBI secrecy agreements prevented police from revealing to the public their purchase and use of the technology, but it even forced law enforcement agencies to hide it from judges and defense attorneys in court proceedings.
Respect for individuals’ autonomy, anonymous speech, and the right to free association must be balanced against legitimate concerns like law enforcement, according to human rights defenders.
The FBI said that it requires officers to obtain a search warrant to use the device unless the case involves an emergency such as a kidnapping, missing child or a crime that could lead to imminent death.
In Katz v. United States, the United States Supreme Court established its “reasonable expectation of privacy” test and held that warrantless wiretaps were unconstitutional searches because there was a reasonable expectation that the communication would be private.
From then on, the government was required to get a warrant to execute a wiretap but 12 years later the Supreme Court held that a pen register or a trap and trace is not a search because the users “voluntarily conveyed numerical information to the telephone company.”
Smith v. Maryland is a case that held since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed.
The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company, but the Smith decision left pen registers completely outside constitutional protection.