Police records obtained by the Daily Dot reveal in unprecedented detail how the Obama administration enables law enforcement to suppress information about controversial phone-surveillance technology used by police throughout the United States.
The documents, which link the purchase of so-called Stingray devices to various North Carolina state and local police agencies, include a fill-in-the-blank warrant drafted by the U.S. Justice Department (DOJ) and intended for use by state and local police that extends the veil of secrecy over law enforcement’s Stingray use.
The records, originally acquired by Working Narratives under North Carolina public records law and shared with Daily Dot reporters, also offer new specifics about the capabilities of Stingrays bought by police in North Carolina from Harris Corporation, a leading U.S. manufacturer of cell-site simulators, and the company behind the original “StingRay” procured by the Pentagon and various intelligence agencies more than two decades ago. The North Carolina agencies referenced by the documents include the New Hanover County Sheriff’s Office; the Wilmington Police Department; and the North Carolina State Bureau of Investigation, an agency that reports directly to Gov. Patrick L McCrory (R).
A batch of internal emails also obtained by the Daily Dot show police debating tactics to keep certain officers away from the witness stand, as well as discussing with a U.S. Secret Service employee the federal government’s efforts to prevent disclosures about these closely guarded surveillance tools, which are used to pinpoint the location of a targeted individual through the interception of cellphone signals.
U.S. attorneys have portrayed the Stingray—the colloquial term for a “cell-site simulator”— as an invaluable law enforcement tool, one that aids in complex narcotics investigations, kidnapping cases, and fugitive apprehension efforts. The government has argued against the disclosure of any information related to Stingrays, stating that it would pose “significant risks to effective law enforcement, and ultimately the safety of the public and the national security of the United States.” The government also requires non-disclosure agreements for police departments that obtain them.
Legal experts, however, say that Department of Justice has purposefully crafted a template for police Stingray warrants that obscures critical details about the device’s operational capabilities from the judges who authorize their use. Multiple civil- and digital-rights organizations claim the language applied in the warrants effectively downplays the most intrusive feature of simulated cell-site technology: jamming the cellphone signals of dozens, if not hundreds, of innocent bystanders while collecting information about them.
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“Given the secrecy surrounding these devices, little is known about when they are used, how frequently, how much data they collect, or how long that data is stored,” adds Katz-Lacabe of the Center for Human Rights and Privacy, whose website lists 25 non-disclosure agreements between police departments and the FBI.
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The policy—which is not to be confused with law—further requires all state and local law enforcement to obtain warrants before using a Stingray in conjunction with a federal investigation. According to internal police records acquired by the Daily Dot, the Justice Department has provided agencies below the federal level with a template for how these warrants should be drafted.
“There are good reasons for police and prosecutors to want to save time when they’re in an investigation and having to re-write an application from scratch probably doesn’t make sense,” says Nathan Wessler, a staff attorney at the American Civil Liberties Union. “What becomes troubling is when some of the boilerplate they intend to just be copied and pasted fails to give a robust enough description of what police want to do.”
According to Wessler and other legal experts who reviewed the warrant, the DOJ’s template is deliberately vague when police tell a judge exactly what the device they want to use is capable of. The warrant minimizes the device’s expansive surveillance capabilities, effectively lies about the technical consequences to bystanders, and deliberately keeps judges in the dark and shielded from oversight responsibilities.
In a statement to the Daily Dot, the DOJ says that the use of Stingray devices are designed to be compliant with the law.
“The current language of Department warrants related to cell-site simulators makes clear that in order to follow department policy and federal law, the devices are designed to comply with the warrant requirement of the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure, as well as the Pen Register Statute,” DOJ spokesperson Dena W. Iverson said.
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The DOJ warrant describes the Stingray as a “trap-and-trace device/cell-site simulator”—making the two descriptions seem interchangeable—that will “determine the location” of their target. But the cell-site simulators can do a whole lot more. It doesn’t just take metadata on call numbers and duration; simulators can do anything up to and including recording phone calls.
“It has the capability, depending on software settings, to intercept text messages and [phone call] content,” says Stephanie Lacambra, a staff attorney at EFF. “They keep trying to say, ‘Oh we’ll make sure that isn’t going to happen.’”
With little oversight, law enforcement is armed with a tool that can capture and record texts and phone calls. They are trusted to use the tool at its minimum capabilities, but there is no publicly known enforcement mechanism or logging to ensure police are following the law and not engaging in illegal surveillance, according to legal experts. “Whether or not they’re using it, there’s no way to tell,” Lacambra says. “It is scout’s honor. We’re just supposed to take them at their word.” The relationship between the courts and police in these cases seems built on trust rather than verification.
“That’s what I find so troubling,” Lacambra says. “The courts are so ready to defer and say, ‘Well, of course we would not expect the police to lie to us whether it’s intentional or unintentional.’”
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