COLUMBIA, S.C. (Dec. 19, 2016) – A bill prefiled in the South Carolina House would ban the use of “stingrays” to track the location of phones and sweep up electronic communications.The proposed law would not only protect privacy in South Carolina, but would also hinder one aspect of the federal surveillance state.
Rep. J. Todd Rutherford (D-Richland) prefiled House Bill 3286 (H.3286) on Dec. 15. The legislation would prohibit any state or local law enforcement agency in South Carolina from purchasing cell site simulators, commonly known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower. This allows 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.
Under the proposed law, any police department already in possession of stingray technology would have to discontinue its use and discard it. H.3286 would impose a complete ban on the use of cell site simulators in the state.
Two other bills prefiled in the South Carolina House would take a more limited approach to addressing stingrays in the state.
Rutherford also prefiled House Bill 3285 (H.3285). The legislation would prohibit law enforcement agencies from purchasing stingrays from any company the requires a non-disclosure agreement. Since such agreements appear to be standard in the industry, the proposed law could stop state and local police from purchasing stingrays altogether. At worst, it would increase the level of transparency surrounding these surveillance devices.
Rep. Cezar McKnight (D-Lake City) prefiled House Bill 3263 (H.3263). This legislation would prohibit state and local law enforcement from entering into a confidential agreement with a federal agency to employ cell-site simulator technology without obtaining a warrant.
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 in April 2015, 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. Passage H.3286 would represent a major blow to the surveillance state and a win for privacy. Passage of either of the other two bills would also hinder the use of stingrays in South Carolina.
All three bills will be assigned to a committee once the regular session begins in January. They will have to pass out of the committee by a majority vote before moving on to the full House.