This article was written by Kelli Sladick and originally published at OffNow.org. It vividly illustrates the potential for abuse when local government agencies use surveillance technology without oversight or transparency. For information on the first step toward ensuring this doesn’t happen in Lexington, click HERE.
One Florida man’s experience provides a peek into the secretive and intrusive world of stingray surveillance.
Many civil liberties activists say you can’t use a cell site simulator and remain compliant with the Fourth Amendment, or state constitutional limits on searches and seizures. Yet state and local police across the the country have access to these extremely intrusive surveillance devices. Due to the shroud of secrecy thrown over cell site simulator programs, your average resident doesn’t even realize their local police can easily track their phones and listen to conversations without them even knowing it.
Cell site simulators, commonly called “stingrays,” essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower. This allows 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.
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 sometimes even 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.
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.
In 2013, we first heard about LOVEINT with allegations that NSA employees abused their surveillance power to spy on significant others. The Senate Intelligence Committee reported 12 recorded cases where NSA agents spied on phone calls and emails; one even did a background check on a potential suitor. It was through self-reported polygraphs that NSA obtained knowledge of such actions. However, there appears to have been little in the way of punishment for those who illegally violated other peoples’ protected rights under the Fourth Amendment on their own personal whims.
The lesson: when somebody with power and means wants too, they can easily interfere with your life. James McLynas found this out when a cop fell for his ex.
McLynas began having odd run-ins with the law that started around his divorce in 2013. As he tells the story, his ex-wife found love within the Pinellas County Sheriff’s Office, and a bitter child custody battles ensued. McLynas claims he was harassed by Tampa Bay area law enforcement officers, along with the child services department. He says officers even stalked him at his child’s school. He also said the department ignored complaints that his wife broke into his home, and even destroyed property. His guests, or any car parked outside his home had their license plate recorded by cops. He claims he was continually harassed until he found evidence on his child’s phone where a Clearwater Police Department officer provided a picture of the recorded license plates to his ex-wife.
After legal battles and complaints to the sheriff’s office, McLynas decided to run for Sheriff in the 2013 election and challenge Sheriff Gualtieri who he said consistently ignored his complaints. Not long after he entered the race, five felony charges were brought against him. One was for battery of an elderly person. and the others included grand theft auto and title fraud. At the time of his arrest, McLynas found himself surrounded by undercover law enforcement vehicles after he crossed a bridge between Hillsborough and Pinellas Counties, and parked in an auto repair shop.
James Mclynas was not unknown the sheriff’s department, nor was his home address unknown to them, nor was any other places he lived. So why on a random day, did the sheriff’s department arrest James when entering Pinellas County after he crossed the bridge? Why not arrest him at his home?
The bigger question: how did they find him?
McLynas and his attorney suspected deputies may have used a stingray device.
McLynas started his investigation by making Florida State’s Public Records requests in late May of 2015.
- Any and all documents showing the possession or acquisition by Pinellas County Sheriff’s Office of “Stingray” or any other form of “Cell Site Simulator” that tracks or monitors cell phone location or activity.
- Any documents that “Stingray” or any other form of Cell Site Simulator” was used to find or track any phone owned or operated by James McLynas on October 30, 2013, or any other date or time.
- Any application for warrant requested by Pinellas County Sheriff’s Office for any surveillance or any form of monitoring for James McLynas.
- Any application for any form of warrant for any purpose or reason related to James McLynas for any time frame.
On June 4th, The Pinellas County Sheriff’s Office responded:
- 1.The information you requested is not available as a public record at this time; it is exempt from disclosure under Florida Statutes Section 119.071(2)c, Section 119.071(2)(d) and Section 119.071(1)(f).
- 2.The information you requested is not available as a public record at this time; it is exempt from disclosure under Florida Statutes Section 119.071(2)c, Section 119.071(2)(d) and Section 119.071(1)(f).
- 3. No records responsive
- 4. No records responsive
Under agreements set up by Harris Corp and the FBI, acknowledging the use of a stingray is forbidden. Since the sheriff’s office can’t outright deny using a cell site simulator, the PCSO hedged. But reading between the lines of its response to question 1 and 2, it seems clear a stingray was in procession of the sheriff’s office and was used on McLynas. However there are no documents concerning a warrant for its use or warrant issued relating to James McLynas.
There is another oddity: the response “no records responsive” when inquiring about the report. When the sheriff’s office was pushed to explain this, they offered this statement.
“The reason you received the response ‘no records responsive’ is because we did not have the document in our possession as it was in the possession of the State Attorney’s Office and sealed under court order. As such, our response was accurate at the time.”
McLynas and his lawyer, Jerry Theophilopoulos, pushed back during pre-trial with a Motion to Compel the sheriff’s office to hand over the evidence. Prosecution cannot legally hide evidence from the defense, even if it is in its favor. In a Supreme Court case of Brady vs. Maryland, all evidence, including surveillance, must be turned over to the defense. The Pinellas County Sheriff’s Office, in the fashion of so many other law enforcement agencies, simply dropped the battery case against McLynas rather than turn over the evidence. However, it still kept the cases of title fraud and grand theft active.
Still not satisfied since he had not received verifiable confirmation that a stingray was used on him, McLynas continued to press the sheriff’s office regarding the other felonies presented against him with multiple records requests, He even went to the state attorney and asked why they decided to not purse him on the battery felony charge that was dropped. Eventually, due to an emailing error, a supervisor at the sheriff’s office accidentally sent McLynas an email titled, “More from McLynas.”
After the court hearing, the attorney and senior associate counsel, Paul Rozelle, told McLynas’s lawyer that a stingray was not used to locate McLynas. After leaving the courthouse, the attorney called the PCSO’s Tactical Operations Unit (TOU) to notify them of the motion to compel all document related to the stingray and if used on James McLynas. The TOU is the division within the sheriffs office that operates the stingray. In a Bar complaint, the attorney reported that was when he first learned that a cell site simulator was actually used on James. He further admitted in a response that a warrant was issued, but created and held by the State’s Attorney’s Office and not in the possession of the Pinellas County Sheriff’s Office. The document was then sealed.
Further the attorney claimed that the stingray was used without a warrant, and they were not dropping the case to hide the fact a stingray was used. He also denied his comment to James’s lawyer after the court hearing were dishonest.
James and his lawyer countered Paul Rozelle’s statements, along Sheriff Gualtieri.
“If the PCSO clerk knew that the documents didn’t exist and no stingray had been used on McLynas, then why did she need to contact Paul Rozelle, “senior associate counsel” for advice on how to simply tell McLynas that none of the documents he asked for existed? The answer; she wouldn’t need to contact Rozelle if that were the case. The documents existed and they turned to Rozelle to ask how to keep them from McLynas.
PCSO Sheriff Gualtieri agreed in writing to not disclose stingray documents “during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State’s case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial””
Later, McLynas and his lawyer finally got a copy of the court order. As it turns out, it wasn’t for a warrant to use a stingray. It was a court order for a pen register/trap and trace device. Nowhere in the order does it mention cell site simulator or stingray. When asked why they said they used a pen register instead of a stingray, the response James received was, they are “not terribly concerned with how they found the suspect.”
James and his lawyer concluded the following:
- Paul Rozell knew exactly who to call about the use of a stingray in his county and refused to disclose this to James, and lied to his lawyer.
- Public records documents were withheld from him to hide the fact that the stingray was used.
- The State Attorney colluded with the Sheriff’s office in hiding the “warrant” documents.
- James was illegally tracked by a stingray. No warrant was issued.
- The case was dropped to continue to hide the documents after the Brady Rule was used in the Motion to Compel.