Stingray Cell Phone Surveillance
- September 2, 2015
- Clayton Rice, Q.C.
The use of Stingray tracking technology by law enforcement agencies hit a public interest peak in the United States recently when an article by Brad Heath titled Police secretly track cellphones to solve routine crimes appeared in the USA TODAY edition of August 24, 2015. I have written about this technology in the context of discussing other issues on this Blog so I will begin by returning to where I left off.
A Stingray device is used to vacuum data from cell phones. It is an International Mobile Subscriber Identity catcher (IMSI), sometimes called a cell site simulator, initially developed for the military and intelligence community. Available information is unclear whether the model called “StingRay” is manufactured by the Harris Corporation, in Melbourne, Florida, or whether it is made in Germany and sold by Harris in the United States. The most current model that I have found is called “StingRay II”. The terminology can be cumbersome. Rather than use IMSI, cell site simulator and StingRay II interchangeably, I will use “Stingray” generically because it is the term that has been predominately used to describe this kind of search and seizure by law enforcement agencies.
A Stingray device mimics a cell tower in order to force mobile phones and other cellular data services within its range to connect to it. Its use constitutes a search and seizure that was kept secret by the FBI and U.S. state law enforcement agencies and therefore has serious implications under Fourth Amendment doctrine and s. 8 of the Canadian Charter of Rights. Although this issue has not been expressly addressed at the appellate level, there are sound arguments for prior judicial authorization in both the United States and Canada based on the opinions in Riley v California, 573 US_ (2014) and R v Spencer,  SCR 212. As frequently happens in the development of issues like this one, all the evidence about the use of Stingray technology is emerging from U.S. jurisdictions. Here’s what I know so far.
In an article titled Stingray spying: FBI’s secret deal with police hides phone dragnet from courts in the April 10, 2015, edition of The Guardian, Jessica Glenza and Nicky Woolf wrote: “The FBI is taking extraordinary and potentially unconstitutional measures to keep local and state police forces from exposing the use of so-called ‘Stingray’ surveillance technology across the United States, according to documents obtained separately by the Guardian and the American Civil Liberties Union. Multiple non-disclosure agreements (NDAs) revealed in Florida, New York and Maryland this week show federal authorities effectively binding local law enforcement from disclosing any information – even to judges – about the cellphone dragnet technology, its collection capabilities or its existence. In an arrangement that shocked privacy advocates and local defense attorneys, the secret pact also mandates that police notify the FBI to push for the dismissal of cases if technical specifications of the devices are in danger of being revealed in court.”
On May 15, 2015, the FBI released a statement obtained by Ars Technica stating that the NDAs were not meant to keep law enforcement from admitting that Stingrays have been used but only to protect details about the “tradecraft and capabilities” of the device: “The NDA should not be construed to prevent a law enforcement officer from disclosing to the court or a prosecutor the fact that this technology was used in a particular case. Defendants have a legal right to challenge the use of electronic surveillance devices, and not disclosing their use could inappropriately and adversely affect a defendant’s right to challenge the use of the equipment. The FBI’s concern is with protecting the law enforcement sensitive details regarding the tradecraft and capabilities of the device.”
According to Bradley Morrison, the chief of tracking technology at the FBI, in an affidavit obtained earlier by Ars Technica, law enforcement privilege over Stingray equipment is asserted because discussion about the capabilities of the equipment would allow criminal enterprises and foreign powers to gain knowledge about the FBI’s capabilities in the area. “This knowledge,” Mr. Morrison added, “could easily lead to the development and employment of countermeasures to FBI tools and investigative techniques by subjects of investigations and completely disarm law enforcement’s ability to obtain technology-based surveillance data in criminal investigations.” In Canada, the privilege claim is often asserted by law enforcement agencies under the rubric of “investigative technique”. It presents a classic clash between the state’s assertion of a privilege and a defendant’s constitutional right to disclosure of information relevant to a challenge based on the manner of the search under s. 8 of the Charter of Rights and the test in R v Edwards,  1 SCR 128. (See: Chris Velazco. FBI says police can disclose Stingray use, but not what they can do. Ars Technica. May 15, 2015; and, Carlos Barria. FBI now says StingRay surveillance can be disclosed. Reuters. May 15, 2015;)
Although the intrusive nature of this technology was becoming known, it had receded into the background noise until Mr. Heath’s article triggered renewed media interest. Here are the highlights:
- In one case after another, USA TODAY found police in Baltimore and other cities used the phone tracker, commonly known as a Stingray, to locate the perpetrators of routine street crimes and frequently concealed that fact from the suspects, their lawyers and even judges. In the process, they quietly transformed a form of surveillance billed as a tool to hunt terrorists and kidnappers into a staple of everyday policing.
- Dozens of police departments from Miami to Los Angeles own similar devices. A USA TODAY Media Network Investigation identified more than 35 of them in 2013 and 2014, and the American Civil Liberties Union (ACLU) has found 18 more. When and how the police have used those devices is mostly a mystery, in part because the FBI swore them to secrecy.
- Police and court records in Baltimore offer a partial answer. USA TODAY obtained a police surveillance log and matched it with court files to paint the broadest picture yet of how those devices have been used. The records show that the city’s police used Stingrays to catch everyone from killers to petty thieves, that the authorities regularly hid or obscured that surveillance once suspects got to court and that many of those they arrested were never prosecuted.
- As that surveillance became more common – and more widely known – state and federal lawmakers moved to put new limits on the circumstances in which it can be used. Some states require the police to get a search warrant before they can use a Stingray, and Congress is considering a similar rule for the federal government.
Although 53 police departments have been identified, the actual numbers are murky. The ACLU has noted that because many agencies shroud their purchase and use of Stingrays in secrecy, the numbers underrepresent their actual use nationwide. The ACLU has also emphasized that the total number of people affected by a Stingray dragnet is not known. When Stingrays are used to track a suspect’s phone, they also gather information about the phones of “countless bystanders” who happen to be nearby. This problem has traditionally been encountered in wiretap investigations where innocent third parties use a targeted phone to make a call. Their private communications are caught in the net particularly if the targeted number is on automatic record. (See: ACLU. Stingray Tracking Devices: Who’s Got Them? February 24, 2015; and, Mark Hansen. Police increasingly using stingray cellphone tracking technology to solve routine crimes. ABA Journal. August 24, 2015)
Stingrays were used in Baltimore in at least 176 homicide cases, 118 shootings and 47 rape cases since 2008 according to the USA TODAY investigation. Robberies made up the bulk of the crimes in which they were used. Other cases included minor offences. In one example, the Baltimore police used a Stingray to track a thief who hooked a cell phone from the backseat of a car. He was charged with a misdemeanour that was dropped by prosecutors a month later. The use of Stingray technology in petty crime cases prompted Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, to observe: “The problem is you can’t have it both ways. You can’t have it be some super-secret national security terrorist finder and then use it to solve petty crimes.” The problem Mr. Fakhoury had in mind must have been this. The state cannot keep the use of Stingrays an intelligence secret and then farm them out to local law enforcement agencies and fulfill its constitutional disclosure obligations at the same time. The disclosure issue would arise in Canada as well as in the United States. (See also: Shannon Stapleton. ‘Stingray’ surveillance tech used in Baltimore for everyday policing – report. Reuters. August 25, 2015; And see e.g., Brady v Maryland, 373 US 83 (1963); and, R v Stinchcombe,  3 SCR 326.)
The point raised by Mr. Fakhoury was highlighted in an article titled The Coming Storm Over ‘Stingray’ Surveillance by Police in The Atlantic CityLab dated August 25, 2015, where Daniel Denvir observed that the secrecy surrounding its use has contributed to a disturbing lack of judicial review: “In many cases,” Mr. Denvir wrote, “police are not securing search warrants before deploying the technology, and they don’t even reveal that they have used it in court, depriving defense lawyers of their ability to argue that evidence was illegally obtained – a key Fourth Amendment safeguard. Spy first, ask judges later.”
Secrecy as a public interest issue had been previously identified by Lucy Steigerwald in an omnibus article titled Everything We Know About the Stingray, the Cops’ Favorite Cell Phone Tracking Tool published by VICE on April 13, 2015. According to Ms. Steigerwald, when Jim Burke, Harris Corporation’s Vice President of Global Communications, was asked to comment on the nondisclosure agreements, he said he had none. “But if there’s one thing,” Ms. Steigerwald wrote, “that the past couple of years of revelations about the depth and breadth of government surveillance have shown, it’s that secrecy invites abuses, and if Stingrays are being used to help spy on people en masse, the public has the right to know about them.”
As a result of Mr. Heath’s article in USA TODAY, attorneys in Baltimore are reviewing hundreds of convictions where the police used cell phone surveillance tools in over 1,900 criminal cases. Baltimore deputy public defender, Natalie Finegar, has been quoted as calling the situation a “crisis”. And on August 28, 2015, four days after the Heath story broke, the secrecy surrounding the use of Stingrays was amplified in an article by Andrew Blake published in The Washington Times titled StingRay surveillance prompts Baltimore attorneys to review nearly 2,000 cases. Mr. Blake quoted Baltimore Police Det. Emmanuel Cabreja in a proceeding in April where he testified that the nondisclosure agreement between the FBI and the Baltimore Police Department required investigators to “withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce.” (See also: Brad Heath. Lawyers plan challenge to arrests based on secret cellphone tracking. USA TODAY. August 28, 2015)
Although media coverage of cases before the courts in the United States has been limited by the abrupt termination of prosecutions under the nondisclosure agreements, lawmakers in the states of Virginia, Minnesota and Washington have taken the lead and passed laws requiring the police to get a warrant before using a Stingray device. The legislation in these states has been described as among the “most aggressive anti-tracking measures” in the United States. Portions of Washington’s legislation were apparently drafted by Daniel Rigmaiden who was apprehended by the FBI in 2008 through the use of a Stingray device and has since become an “active advocate” against their use. (See: Ellen Nakashima. Secrecy around police surveillance equipment proves a case’s undoing. The Washington Post. February 22, 2015; Russell Brandom. Washington state will require a warrant for Stingray cell-phone tracking. The Verge. May 12, 2015; Clarence Walker. New Hi-Tech Police Surveillance: The “StingRay” Cell Phone Spying Device. GlobalResearch. May 19, 2015; and, Cale Guthrie Weissman. How an obsessive recluse blew the lid off the secret technology authorities use to spy on people’s cell phone. Business Insider. June 19, 2015)
Information about the use of Stingrays in Canada is even more obscure than it has been in the United States. In an article titled Video: How does Canada’s spy agency monitor your life? in The Globe and Mail edition of February 27, 2015, Matthew Braga wrote that the RCMP has refused to confirm or deny whether StingRays or other IMSI catchers have been used. According to Mr. Braga, RCMP spokesperson David Falls said the agency “[does] not release information pertaining to capabilities/tools as that can have an impact on our investigations.” And both the Canadian Security Intelligence Service and Communications Security Establishment have declined comment citing national security exemptions.