by Frank Knaack, Director of Public Policy and Communications
Here’s something you may not know. And, you may not know it largely because of law enforcement efforts to keep it a secret from you. We’re talking about a mass surveillance device known as a cell site simulator or IMSI catcher (International Mobile Subscriber Identity). In one of the latest revelations of domestic spying, we know that at least one (likely more) Virginia law enforcement department (Chesterfield) owns one of these cell site simulator devices manufactured by the Harris Company called a “Stingray.”
Stingrays (and other brands of this technology) are cell phone surveillance devices that mimic cellphone towers – they send out signals to trick cellphones in the area into transmitting their locations and identifying information, thus enabling law enforcement to conduct dragnet surveillance, undermine the First Amendment right to free association, and gain real time control of your phone including the power to access and send email, calls, and texts. (And, these are just the concerns regarding the capability of Stingrays – the secrecy surrounding Stingrays requires its own blog.)
Stingrays create an Orwellian version of the childhood game ”Marco Polo” – one where law enforcement yells “Marco” and all the cellphones in the area yell back “Polo,” thus revealing peoples’ movements with great precision. Even if law enforcement is using a Stingray to track a specific person, the Stingray will gather the information from every cellphone in its range, including all cellphone phone and serial numbers and the strength of each signal (which enables precise location tracking). So, in the best case scenario – that being the law enforcement officer followed the U.S. Constitution and obtained a warrant to gather the electronic communications of an individual – this is unconstitutional dragnet surveillance because it also gathers the digital information of everyone else within the Stingray’s range. Because we carry our cellphones with us virtually everywhere we go, Stingrays can paint a precise picture of where we go and who we spend time with, including our doctors, partners, faith leaders and political affiliations. This is information that our government has no business knowing.
Similar to automatic license plate readers (ALPRs), which we wrote about last week, Stingrays enable law enforcement to evade the constitutional rights of private associations. While the U.S. Supreme Court has made clear that the government generally cannot force a private association to turn over its membership list to the government, the introduction of Stingrays has provided law enforcement with a tool to get around this constitutional limitation. Let’s say the Tea Party (or a religious group, or the NRA, or Narcotics Anonymous, or the ACLU) is having a meeting – law enforcement can simply stand near the meeting location and use its Stingray to collect information about the location and identity of phones inside. And, as with ALPRs, after a few meetings the government will not only have a good idea about who is a member, but also a good idea of who the more active members are. By enabling law enforcement to work around the constitutional protection of membership lists, Stingrays can make people second guess whether they should engage with private associations, particularly those associations not favored by the government.
In addition to tracking you and which associations you belong to, Stingrays enable law enforcement to hijack your phone. That’s right – Stingrays allow law enforcement to take over your phone, view your calls and texts in real time, and even make calls and send texts and emails from your phone. And, they can do all of this without you ever knowing. Beyond raising fundamental privacy concerns, this feature also raises serious concerns over the ability of law enforcement to plant evidence, such as an incriminating email or text.
Stingrays undermine a concept that is fundamental to both our privacy rights and criminal justice system – probable cause. The government cannot obtain a warrant to search your house or your cellphone without probable cause. In fact, warrant applications require law enforcement to describe the specific person and things to be searched and seized and the probable cause that exists to justify the specific search. Stingrays do not work this way – they gather the information from everyone within their range, warrant or no warrant. Unlike ALPRs, drones, and police body cameras, which can all serve legitimate government purposes (with proper protections in place), Stingrays are fundamentally at odds with the Constitution because their only purpose is dragnet surveillance. It’s time for the General Assembly to send a clear signal to law enforcement. It’s time to ban the use of Stingrays.
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