October, 2015

Police Use Stingray Device for Routine Criminal Matters

A recent article in USAToday reported that police departments in at least 53 cities increasingly “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.”  The reporters looked at data from Baltimore and found 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.”  The reporters said that defense attorneys in many of the cases were not aware of the use of the Stingray devices in the cases until contacted by the reporter, even though state law requires disclosure to the defense of the use of electronic surveillance.

A spokesman for the FBI said the Bureau cannot tell local police agencies how to use the devices, but does require the agencies to sign confidentiality and non-disclosure agreements about the use of the technology.  For example, in one case in Baltimore in 2014 [a link to the suppression hearing transcript is below], during a hearing on a defense motion to suppress evidence, a detective, citing a non-disclosure agreement, refused to answer questions about the Stingray technology.  The trial court stated there was no non-disclosure agreement with the court and ordered the witness to answer.  The witness refused, the prosecutor conceded the issue, and a gun and phone were suppressed from use at trial.

FBI Director James Comey said in 2014, “It’s how we find killers…It’s how we find kidnappers.  It’s how we find drug dealers.  It’s how we find missing children.  It’s how we find pedophiles.” Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation, was quoted as saying, “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 Stingray devices can locate and track cellphones by acting as a cell tower.  Information about the target phone, as well as others nearby, is collected; specific content of conversations is not collected.

Sources:  Brad Heath, “Police secretly track cellphones to solve routine crimes,” usatoday.com, August 23, 2015: http://www.usatoday.com/story /news/2015/08/23/baltimore-police-stingray-cell-surveillance/31994181/.  Baltimore Suppression hearing: https://www.documentcloud.org/docume nts/2291303-md-v-shemar-taylor-stingray-hearing.ht ml#document/p73/a236312%29.

Local Police “Snap Up” Cellphone Trackers

Small, handheld surveillance devices, such as products called “Jugular” and “Wolfhound,” cost only a few thousand dollars and are increasingly being used by local law enforcement agencies because of the lower cost and the possibility that a court order may not be needed to passively detect WiFi transmissions.  Because the devices “passively” gather radio waves, instead of a more active intrusion, the usage may not require a court order under current federal laws, according to former federal prosecutor, and current professor of law, Orin Kerr.  Such passive detection devices do not listen in on conversations and are used, possibly in conjunction with other surveillance devices, like the “stingray” systems, to locate specific cellphones.  The passive detection devices, according to a former signals analyst with the U.S. Marine Corps, are a “finishing tool … to locate a target phone with precision, up close and covertly.”
  Jennifer Valentino-Devries, “Police Snap Up Cheap Cellphone Trackers,” wsj.com. August 18, 2015: http://www.wsj.com/articles/police-snap-up-cheap-cellphone-trackers-1439933271

Justice Department Issues New Policy for Cell-Site Simulators

On September 3, 2015, the Department of Justice issued a new policy regarding use of cell-site simulators to “enhance transparency and accountability, improve training and supervision, establish a higher and more consistent legal standard and increase privacy protections in relation to law enforcement’s use of this critical technology.”

U.S. Deputy Attorney General Sally Quillian Yates said, “Cell-site simulator technology has been instrumental in aiding law enforcement in a broad array of investigations, including kidnappings, fugitive investigations and complicated narcotics cases.  This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals’ privacy and civil liberties.”

Sources:  http://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.  U.S. DOJ Policy:  http://www.justice. gov/opa/file/767321/download.  Related articles: Criminal Defense Newsletter, February-March, 2015, Vol. 38, Issues 5 & 6, p. 5; April, 2015, Vol. 38, Issue 7, p. 9; August-September, 2014, Vol. 37, Issues 11 & 12, p. 11; November, 2014, Vol. 38, Issue 2, p. 8.

European Court Ruling Limits
U.S. Data Storage

The European Union court in Luxembourg recently ruled that Facebook and other U.S. digital operators do not provide their users with protection from state surveillance.  A “safe harbour” agreement between U.S. companies and the European commission, which provided “guidance for US firms on how to protect for the personal data of EU citizens as required by the European Union’s directive on data protection,” was ruled invalid because it “enables interference, by United States public authorities, with the fundamental rights of persons…”
  Owen Bowcott, “Facebook row: US data storage leaves users open to surveillance, court rules,” mg.co.za, October 6, 2015:  http://mg.co.za/article/2015-10-06-facebook-row-us-data-storage-leaves-user s-open-to-surveillance-court-rules.

Facial Recognition Software Increasingly Used By Local Police

A recent article in the New York Times examined the use of facial recognition software, frequently without standards or guidelines, by local law enforcement agencies around the country.  The software is designed to identify 16,000 points on a person’s face and compare the data to police booking photos, or other photos, at a rate of one million faces per second.

The article reported that in a 33-day period in San Diego County, California, twenty-six law enforcement agencies there used facial recognition software on more than 20,600 occasions.  However, a match to a person with a criminal record occurred only about 25 percent of the time.

The San Diego Police Department has 1,900 officers and has been accused by the Justice Department of a history of misconduct and disproportionate stops and searches of African Americans.  Racial background data is not kept by the law enforcement agency when facial recognition software is used.  A spokesman for the police department said its officers are not required to make a report when the technology is used and no arrest is made.  The spokesman also said, “We don’t just drive around taking people’s pictures and start swabbing them [for DNA samples].”  A fellow at the Brennan Center for Justice, Michael German, was quoted as saying, “It is not as if there is the identification of a specific crime problem:  they are simply collecting a lot of information that could impact a lot of completely innocent people.”

In 2013, authorities in Boston decided not to implement the technology after testing it and concluding that it crossed an ethical line.

Source:  Timothy Williams, “Facial Recognition Software Moves From Overseas Wars to Local Police,” nytimes.com, August 12, 2015: http://www.nytimes. com/2015/08/13/us/facial-recognition-software-mov...?_r=0.

by Neil Leithauser

Associate Editor