ALBANY N.Y. (April 29, 2015) – A bill filed in New York would ban law enforcement from using FBI-funded cell site simulators, known as stingrays, to intercept all communications in an area without a judicial order.
Sen. Michael Ranzenhofer (R-Williamsville) introduced Senate Bill 4914 (S04914) on April 23. The bill would require law enforcement agencies to obtain a judicial order before deploying a “mobile phone surveillance device or system,” commonly referred to as a stingray. The legislation places these devices under existing requirements already in place for phone trap and trace devices and pen registers.
Stingrays spoof cell phone towers and essentially trick Any device within range into connecting to the stingray instead of the tower. These devices allow 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.
Law enforcement agencies have long used pen registers, and trap and trace devices, to obtain meta data and record conversations from land line telephones. New York law requires police to obtain a judicial order before utilizing one of these devices. Stingrays allow law enforcement to obtain the same type of information from cell phones. Under current law, police can use a stingray without any judicial approval or restrictions. if passed, S04914 would place the same requirements on law enforcement use of stingrays as currently in place for pen registers, and trap and trace devices.
Under the proposed law, police would have to show “articulable facts, warranting the applicant’s reasonable suspicion that a designated crime has been, is being, or is about to be committed and demonstrating that the information likely to be obtained…is or will be relevant to an ongoing criminal investigation of such designated crime” before a judge could issue an order for the use of a stingray. The law also places time limits on their use once approved and sets up a mechanism to extend the order if necessary.
IMPACT ON FEDERAL PROGRAMS
Primarily through the FBI, 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. For example, the Baltimore Sun reported that 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 sate 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. Passage of S04914 would prove a major blow to the surveillance state and a win for privacy.
The legislation was referred to the Senate Codes committee where it will need to pass by a majority vote before moving on to the full Senate for consideration.