PROVIDENCE, R.I. (April 11, 2016) – On March 30, the Rhode Island House Committee on Judiciary held a crucial hearing on a bill that would require a judicial order for the use of “stingrays” to track the location of phones and sweep up electronic communications. Passage of the bill would not only protect privacy in the state, but would also hinder one aspect of the federal surveillance state.
Rep. Blake Filippi (I-36), along with a bipartisan coalition of four representatives, introduced House Bill 7681 (H7681) on Feb. 24. Passage would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
H7681 would require law enforcement agencies to obtain a judicial order before using a stingray device based on the same requirements currently in place for trace/trap devices and pen registers. A judge could authorize the use of a stingray device if police show the information they hope to collect is relevant and necessary to an ongoing criminal investigation. Under the current law governing pen registers and trace/trap device, law enforcement must provide the judge with specific information designed to protect innocent people.
Currently, police in Rhode Island can track cell phone locations and even listen in to conversations with no restrictions or limitations.Passage of H7681 would be a vast improvement over the status quo.
During the hearing, Filippi outlined how the stingrays are used and noted the shroud of secrecy that surrounds the devices. He pointed out that in Florida, a local law enforcement agency turned an ACLU open records request over to the federal officials so they wouldn’t have to disclose information about their use of cell site simulators.
“They’re being pushed by the federal government for local police agencies to adopt and start using. This raises profound privacy issues,” he said.
One committee member asked if law enforcement could use stingrays to thwart a terror attack. Other than that, she said she found it hard to understand why they would even need such devices.
“You can always find reasons to infringe on people’s privacy,” Filippi responded.
Randall Rose, a Rhode Island activist testifying in support of the bill, explained how a mayor could use a cell cite simulator to target political opponents. He set up a scenario where protesters stage a rally in front of city hall. The mayor could have police deploy a stingray and find out the identities of all the protesters.
“Under current law, this would be perfectly legal,” Rose said.
Hillary Davis with the Rhode Island ACLU also testified in support of H7681.
“We’re going to continue to see these technological advances become more and more problematic for Rhode Islanders, and this is one of those things we really do need to get ahead of.”
Nobody opposed to the legislation testified during the hearing.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported last fall, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases. The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.
If you live in Rhode Island: click HERE and follow the steps to help pass this bill.
If you live in another state: click HERE to get model legislation to protect privacy in your state.