A Massachusetts bill would prohibit the warrantless use of stingray devices and the collection of electronic data stored by service providers in most situations. Final passage of the bill would not only protect privacy in Massachusetts; it would also hinder at least two aspects of the federal surveillance state.
A bipartisan coalition of more than 70 representatives and senators have signed on to cosponsor House Bill 3422 (H3422). The legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
Under the proposed law, law enforcement would only be able to use a stingray device pursuant to a warrant based on probable cause, a person’s informed consent, or in accordance with a judicially recognized exception to the warrant requirement. H3422 would also bar police from obtaining or accessing electronic data held by a service provider under the same standard. The bill covers metadata, communications content and location information. It does include exceptions to the warrant requirement for certain emergency situations.
The legislation also includes protection to limit the retention of data. It requires that police must “take all steps necessary to permanently delete any information or metadata collected from any person or persons not specified in the warrant immediately following such collection and ensure that such information or metadata is not used, retained, or transmitted for any purpose whatsoever; and delete any information or metadata collected from the person or persons specified in the warrant authorization within thirty days if there is no longer probable cause to support the belief that such information or metadata is evidence of a crime.”
Evidence obtained in violation of the law would be inadmissible in court.
“No information obtained in violation of this section and no information provided beyond the scope of the materials authorized to be obtained shall be admissible in any criminal, civil, administrative or other proceeding.”
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of H3422 would strike a major blow to the surveillance state and would be a win for privacy.
By prohibiting the use of information “obtained” outside the scope of the law, H3422 would hinder one practical effect of NSA spying in Massachusetts.
Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.
In other words, not only does the NSA collect and store this data, using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.
This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.
H3422 was referred to the Joint Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.