When talking of freewheeling domestic spying, it would behoove us to remember that it’s not just the National Security Agency (NSA) that needs reform and a tight leash. Hell, it’s not even just federal agencies who are disinterested in your Fourth Amendment rights. Like the war toys that move from the Pentagon down to myriad local law enforcement agencies, dragnet spying is happening at the state and city level, too.
Last Friday, VICE Motherboard’s Max Cherney reported on the continued, disturbing trend of local police departments acquiring International Mobile Subscriber Identity (IMSI) catchers, more commonly referred to by brand names such as Trigger Fish and Stingray. These suitcase-sized devices act as fake cell phone towers – phones in offices, homes, or pockets connect to them, and then cops can read identifying information, and access metadata such as call length, stored numbers, who you’ve called (even if you’re not calling anyone at the moment), and location data. Cherney notes that the capability for the devices to monitor voice content is (supposedly) disabled domestically, but it can read SMS text messages.
The creepier thing about cops owning these devices is that the fact that they do so at all is often protected with the utmost secrecy – kinda like your own corner NSA! – under federal law and under nondisclosure agreements that the device manufacturers themselves mandate. One manufacturer, Harris Corp., has an agreement which states local police must "coordinate with the FBI the acquisition and use of the equipment."
Earlier this year, a USA Today article found that at least 25 police departments across the US possess these devices. Odds are the number is a lot higher, however, as 36 departments refused to answer at all. According to a June 12 Associated Press report, the Obama administration is also pushing local police to refrain from revealing information about these and similar devices due to the possibility of jeopardizing potential anti-terrorism investigations.
Many police departments have already responded to information requests on Stingrays with either nothing or heavily redacted documents. In response to an American Civil Liberties Union (ACLU) suit in Sarasota, Florida, police used measures to get around state open records laws that would be hilarious if they weren’t so troubling. After initially responding positively to ACLU inquiries, the feds butted in. US Marshals actually deputized a Sarasota police officer, then moved the requested records hundreds of miles out of the state. Bada-bing, bada-boom, Florida open records laws no longer apply. The ACLU continues to fight this.
There are other examples. The San Francisco PD refused to confirm owning a Stingray when Cherney asked for his Motherboard investigation. Police in Tucson declined to share a Powerpoint presentation on how the device works, citing the 1976 Arms Export Control Act among other federal restrictions. In March, an activist in Chicago sued the police department under the Illinois state freedom of information law in order to ascertain whether they were using such a device to spy on activist groups. He has yet to receive a response. The New York ACLU isn’t having much luck finding out whether the Erie County Sheriff’s Department is using Stingrays either. In Tallahassee, ACLU requests for documents on Stingrays were met with counterterrorism excuses. It goes on.
These types of broad tactics go beyond the humble IMSI. Last week’s USA Today story also noted their previous investigation into what they call a “legally fuzzy” police tactic known as a “tower dump." This is a warrantless way to access information about potentially thousands of cellphone users in an area. A quarter of the 125 police departments USA Today asked admitted to using this tactic.
These tactics feel illegally broad, and they might be if challenged. But that means the courts and the legislature need to catch up with metadata’s powers to reveal far too much about all of our habits, activities, and friends. Last week saw an encouraging 11th Circuit Court of Appeals decision which held that warrantless phone surveillance is a violation of the Fourth Amendment. That potentially means mass cell phone spying is illegal. Hopefully the Supreme Court will take up the question.
The highest court has yet to weigh in on some of our weightiest current privacy questions, but in US. v. Jones (2012) they did hold that attaching a GPS device to a car constituted a search. (Though a majority did not hold that attaching such a device violated the plaintiff’s reasonable expectation of privacy, so it’s hard to guess how they might rule on a challenge to mass spying.)
Another metadata-like tactic is an increase in local mass license plate reading, which similarly seems a relatively minor and abstract form of surveillance to people not paying attention. But it, too, can help paint an unnervingly clear picture of human activities – potentially embarrassing or private ones as well.
Fundamentally, our legal system is decades behind technology in terms of Fourth Amendment protections. This badly needs to be addressed in a substantial fashion.
We can’t seem to fix the NSA – at least not yet. And if we do, arguably their spying activities could be passed off onto other agencies such as the FBI or the DEA (both of which have long habits of working closely with local police on dodgy surveillance activities). In the face of so many overlapping agencies, some kind of overriding protection against wide-sweeping surveillance seems to be the only possible defense. In 2011, Democrat Sen. Ron Wyden (Ore.) and Republican Rep. Jason Chaffetz (Utah) co-sponsored legislation that would deal with the question of location data and what government agents can do with it. Whether that bill – if it ever gets anywhere – or similar would end up toothless like NSA reform has remains to be seen, but Wyden has a been a staunch advocate for privacy for many years. We need something similar to his suggestion, or we’re really screwed.
Thinking more pessimistically still, odds are we’re going to need a couple of neighborhood Ed Snowdens to even begin to understand the scope of this type of localized mass spying. Barring that, the one-two punch of local and federal heel-digging makes it unlikely that the truth about Stingrays – who has them, and just what they’re doing with them – will come out any time soon.
Lucy Steigerwald is a contributing editor for Antiwar.com and a columnist for VICE.com. She previously worked as an Associate Editor for Reason magazine. She is most angry about police, prisons, and wars. Steigerwald blogs at www.thestagblog.com.