S. E. Williams | BVN Executive Editor
“I strongly disagree with the assumption that the warrantless search of a residence, under non exigent circumstances, can be justified on the paternalistic premise that ‘We’re from the government and we’re here to help you.’”
-Justice Stanley Monk
When the IE Voice reported on the covert use of cell site simulators (stingrays) by the San Bernardino County Sheriff’s Department (SBCSD) in August 2016, many residents were unaware of their existence, let alone how they were being used.
Cell site simulators, also called stingrays, mimic cell towers. They are used to determine where a cell phone is located and gives sheriff deputies the ability to intercept phone calls and text messages.
The revelation of SBCSD’s use of stingrays, however, was already well known in certain segments of the government and among other police organizations and the tech community–the county has used this technology since late 2012.
In May 2015, a technology publication ARS Tenica in response to a public records request, reported how the SBCSD provided an example of the questionable template it was using as a warrant application for the deployment of stingrays. The template in question was a “pen register and trap and trace order” a holdover from the days before cell phones, which basically allowed officers to obtain someone’s calling data from the telephone company.
In October 2016, ARS Technica additionally identified San Bernardino County as having the highest rate of Stingray use in the country at the time, noting how in a little more than a year—January 2014 to May 2015—the agency used the stingray 303 times. This was the same year the California Electronic Communications Privacy Act was passed which requires law enforcement to seek a warrant before they can access any type of digital data either produced by or contained within a device or service.
When the legislation was signed into law ACLU attorney Nicole Ozer remarked, “This is a landmark win for digital privacy and all Californians. We hope this is a model for the rest of the nation in protecting our digital privacy rights.”
It is important to note SBCSD fought passage of the groundbreaking legislation.
In October 2018, the Electronic Frontier Foundation (EFF), a nonprofit digital rights group based in California, filed suit against SBCSD when it denied a public records request for six specific warrants. According to EFF, “The request contained detailed information about each warrant, made public by the DOJ, such as the nature of the warrants, the precise start and end dates of the warrants and verbatim quotes about the grounds for each warrant.”
Despite EFF’s level of specificity, SBCSD denied the request claiming it was “vague, overly broad,” and failed to describe an “identifiable record” further declaring the records were investigative and as such exempt from disclosure.
A February 1st report by the IE Voice revealed the late January outcome of the case as determined by San Bernardino County Superior Court Judge, Dwight Moore, who denied EFF’s petition to unseal court records stating after he reviewed the search warrants and affidavits, he found some of the information should never get out because it would reveal “intelligence sources and methods” and could present “a danger to somebody.”
During a recent discussion between EFF and the IE Voice, a spokesperson for the organization indicated the group is considering an appeal.
There are two important reasons the community should care about the issue:
- Anyone’s information can be swept up.
Cell site simulators or stingrays do not just focus on the target under investigation—they are highly invasive. By simulating legitimate cell towers, stingrays work by conducting a general search within a certain radius and basically tricking cell phones to connect calls and texts through them.
Though they enable police and deputies to pinpoint the location of phones with greater accuracy they are also able to log what are called “IMSI” numbers—the unique identifying numbers of all of the mobile devices—within a given area. And regarding what critics consider even more alarming is some simulators have advanced features allowing law enforcement to intercept communications (or even alter the content) of communications according to experts familiar with the technology.
Law enforcement uses two types of devices. One is considered “passive” in that they do not transmit signals and primarily work by pulling cellular transmissions from the air like an FM radio station and then decoding the signals to find the IMSI of the cell phone it seeks to track.
The other type, cell site simulators or stingrays, work differently. They typically connect to the nearest cell site with the strongest signal and then broadcast using signals even stronger than the legitimate cell towers around them. This is because cell devices seek and connect to the strongest signals. Though cell site simulators also have a passive option which is also concerning, active simulators continue to draw focus and criticism.
What concerns most individuals is the kind of intensely personal information gathered by these simulators about people in the area who use cell phones whether they were ever suspected or involved in a crime or not.
Manufacturers of these devices like GammaGroup, for example, report their devices can be configured to divert calls and text messages, edit messages, and even spoof the identity of a caller in text messages and calls. Whether this is happening locally or anywhere in the nation is unknown.
- How the information is used by law enforcement
Officers use stingray data to locate suspects when they have their cell phone identity or to gather information on anyone in a designated area. Some simulators are so small they fit conveniently in an officer’s cruiser enabling them to drive to multiple locations and capture cell phone information from everyone in those areas including private residences and businesses. According to a report in The Intercept some can acquire up to 10,000 phones at a time.
Use of these simulators is widespread among government agencies including FBI, DEA, NSA, Secret Service, and ICE, in addition to most branches of the military including the U.S. Army, Navy, Marine Corps, and National Guard, as well as U.S. Marshals. It’s even been reported the FBI has attached them to airplanes to track suspects.
Secret Surveillance and Race
In October 2016 Bloomberg reported on CityLab’s mapping of Racial Disparities in Police ‘Stingray’ Surveillance highlighting the disparate collection of cellphone data in poor, Black neighborhoods. The article quoted the following scenario to dramatize the impact.
“Louise Goldsberry, a Florida nurse, was washing dishes when she looked outside her window and saw a man pointing a gun at her face. Goldsberry screamed, dropped to the floor, and crawled to her bedroom to get her revolver. A standoff ensued with the gunman—who turned out to be an agent with the U.S. Marshals’ fugitive division. Goldsberry, who had no connection to a suspect that police were looking for, eventually surrendered and was later released.”
Although police would claim they raided her apartment because they had a tip about the apartment complex, it was later revealed they only had an approximate location of the suspect’s phone acquired with the use of a cell site simulator.
The Fourth Amendment and the Push for Legislative Change
The use of stingrays without a warrant violates the Fourth Amendment as determined by the Washington, D.C. Court of Appeals in 2017 when it overturned a Superior Court conviction of a man who was located by police using a cell-site simulator. According to the court, the defendant’s Fourth Amendment rights were violated when law enforcement tracked him down using his own cell phone without a warrant. The court stated, “We thus conclude that under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cellphone invades the person’s actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search.” Adding, “We agree with [the defendant] that the government violated the Fourth Amendment when it deployed the cell-site simulator against him without first obtaining a warrant based on probable cause.” This is what makes the EFF suit against San Bernardino so relevant. Without access to the warrants the public must trust the efficacy of the department’s efforts—a department with a long history of suspect abuse.
The entire history of stingrays and their use has led to cries for the government to implement laws to protect unknowing citizens from the invasive process based on the Fourth Amendment to the U.S. Constitution which forbids unreasonable searches and seizures of individuals and property.
Selling the Fourth Amendment
In late January news broke of another impingement on the Fourth Amendment when the Defense Intelligence Agency in response to a request from the senate acknowledged it was buying location data information from brokers and claiming it did not need a warrant to do so. Data collected via the cell site simulators are to be destroyed within a specified time period, normally 30 days, and as such were probably not part of the information brokering.
The purchase of any such information, however, regardless of the source is considered a violation of the Fourth Amendment and senior ACLU staff attorney Ashley Gorski recently told the Verge, “[T]he government cannot simply buy our private data in order to bypass bedrock constitutional protections.” She further called on Congress to not only end the practice but also require the government to get a warrant for location data, regardless of its source. A 2018 U.S. Supreme Court decision Carpenter v. The United States barred law enforcement from requesting personal location information from a cell phone company without first obtaining a search warrant from a judge. The DIA, however, does not view purchasing such data from third party data brokers as an issue because it is not invoking the power of the law to acquire it.
Legislation introduced in the U.S. Senate last August titled, “The Fourth Amendment is Not for Sale,” would ban law enforcement agencies from purchasing personal data from data brokers. Whether it will be taken up in the current session is yet to be determined.
S. E. Williams is executive editor of the IE Voice and Black Voice News.