It was once believed that secretive cellphone surveillance was conducted only by the National Security Agency. But new reports indicate that local police departments are also increasing their abilities to conduct similar operations and the Obama administration is asking that they keep it a secret.
At the center of the emerging controversy is a suitcase-sized device called a Stingray. The device mimics a cellphone tower and can collect information about thousands of cellphone users in real time whether they are the target of an investigation or not.
USA Today reports that more than 125 police departments in 33 states are using the devices.
The Stingray operates by tricking a phone’s software into revealing unique subscriber identification numbers and transmitting that information to police departments. That enables the police to obtain the information and listen to cellphones calls without the cooperation of the servicer provider.
According to The Associated Press, it is unclear exactly how the technology works so it is difficult to determine whether the use of the device by law enforcement violates a person’s constitutional rights. And so far the Obama administration has been unwilling to help people make that determination.
Citing security reasons, administration officials have taken part in routine, state-level public records trials and criminal cases in which Stingrays were used. By doing so, the federal government has prevented the release of public documents regarding the purchase and use of the device.
That meddling in state cases by the Obama administration is cause for concern for some privacy rights advocates like Nathan Freed Wessler, an attorney with the American Civil Liberties Union.
“These extreme secrecy efforts are in relation to very controversial, local government surveillance practices using highly invasive technology,” Wessler said. “If public participation means anything, people should have the facts about what the government is doing to them.”
A state’s open record laws should make it easy for people to get the information, according Ginger McCall, a director at the Electronic Privacy Information Center. But, she said, the federal government often successfully intervenes in public records cases to prevent that from happening.
“It’s troubling to think the FBI can just trump the state’s open records law,” McCall said.
That happened in Tucson, Arizona, when FBI special agent, Bradley Morrison, filed an affidavit saying that disclosure of the local police’s surveillance capabilities would “result in the FBI’s inability to protect the public from terrorism and other criminal activity because through public disclosures, this technology has been rendered essentially useless for future investigations.”
The FBI would not answer questions about its role in such cases.
That kind of secrecy means it is also unclear if local police are even bothering to obtain a warrant. In February, Wessler wrote a brief article for the ACLU making that very point.
“This sort of invasive surveillance raises serious questions about whether our tax dollars are funding violations of the U.S. Constitution's Fourth Amendment,” Wessler wrote. “At a minimum, police should be required to go to a neutral judge, demonstrate probable cause and get a warrant before using Stingrays, but many law enforcement agencies are not doing that.”