The following report was originally published at OffNow.org. It underscores the need for Lexington to ensure its law enforcement agencies operate all surveillance programs with oversight and transparency. Passage of a local ordinance would take the first step.
A congressional report published late last year establishes a definitive link between state and local cell site simulators and federal funding.
Commonly known as “stingrays,” cell site simulator devices essentially spoof cell phone towers, tricking any device within range on the cellular network into connecting to the stingray instead of the tower. Police primarily use the technology to locate and track the location of cell phones, but many law enforcement agencies own cell site simulators that can be configured to sweep up communications content including conversations, text messages and other information stored on the device.
A December 2016 report released by the U.S. House Committee on Oversight and Government Reforms confirmed the feds provide funding to state and local law enforcement agencies for the purchase of stingray devices. It appears the bulk of the funding comes through the Department of Homeland Security. The DHS allows state and local law enforcement agencies to purchase stingrays through a number of grant programs administered by FEMA.
According to the report, the DHS identified $1.8 million in grant money distributed to state and local law enforcement agencies for the purchase of cell site simulator technology. The report concluded this likely significantly understates the actual amount of federal funding.
“However DHS does not maintain a separate accounting of grant funds used to purchase cell site-simulators and the total amount may be higher.”
The report identifies a number of specific grant programs state and local government agencies can access to purchase stingrays, including State Homeland Security Program, Law Enforcement Terrorism Prevention Program, Citizen Corps Program, Urban Areas Security Initiative, Emergency Management Performance Grants, Buffer Zone Protection Program, Transit Security Program, and the Intercity Passenger Rail Program.
During its investigation, the committee randomly chose four cities reflecting various populations and crime rates, along with two states, to ascertain the number and type of cell-site simulators in use, as well as the policies employed. The committee sent requests to police departments in Washington, D.C.; Alexandria, Virginia; Sunrise, Florida; Baltimore, Maryland; the Tennessee Bureau of Investigation; and the Virginia State Police. All of the agencies reported having cell-site simulators. The Baltimore P.D. and the Tennessee Bureau of Investigation both used DHS grant money to purchase their devices. The other jurisdictions reportedly used local funding.
The Department of Justice claimed it does not generally fund state and local law enforcement stingray purchases, but officials hedged a bit in their response, saying the department “generally does not provide cell-site simulators to State and local law enforcement or fund their purchase.” [Emphasis added] It added that there were only a “handful of instances” where DOJ grant money has been used to purchase cell-site simulators.
Even while minimizing the DOJ’s role in funding stingray surveillance, the committee did find at least one case where the FBI loaned a cell site simulator to a state law enforcement agency.
“Although DOJ reported that it generally does not provide cell-site simulators to state or local law enforcement, in at least one instance, it did report that in October 2010, an FBI field office in North Carolina requested and received from FBI headquarters a cell-site simulator for loan to the North Carolina Bureau of Investigation for an ‘indeterminate period of time.’”
The level of federal involvement in the stingray game is almost certainly more extensive than revealed by the congressional report. The federal government and manufacturers shroud cell site simulators in a veil of secrecy. The report highlights how the FBI requires agencies acquiring stingrays to sign non-disclosure agreements. Since they operate over the airwaves, the FCC has regulatory control over cell site simulator manufacturers. This opens the door for the FBI to dictate disclosure policies.
“The Committee’s investigation found that those state and local entities that do purchase a cell-site simulator frequently sign non-disclosure agreements with two entities, the company selling the device, and the FBI. In addition to the publicly available versions of the nondisclosure agreements the Committee also obtained copies of non-disclosure agreements between the FBI and various state and local jurisdictions. As explained more fully below, these non-disclosure agreements actively prohibit the public from learning about the use or role that a cell-site simulator may play in a state or local criminal investigation … These non-disclosure agreements impose significant secrecy requirements on the state and local entities seeking to obtain cell-site simulators. A review of these agreements showed that all contained similar language that prohibited state and local entities from disclosing any information about their use of cell-site simulators. For example, the typical non-disclosure agreement required that for any state or local law enforcement entity looking to purchase the device, that entity would agree to ‘not, in any civil or criminal proceeding, use or provide any information concerning … wireless collection equipment/technology, its associated software.’
These non-disclosure agreements include clauses requiring state prosecutors to dismiss cases at the FBI’s request to avoid releasing information about stingrays.
Manufacturers also often require purchasers to sign company non-disclosure agreements.
One of the manufacturers included in its terms and conditions of a sale language that the purchaser “shall not disclose, distribute, or disseminate any information regarding Customer’s purchaser or use of” the equipment “to the public in any manner, including but not limited to: in press releases, in court documents and/or proceedings, internet or during other public forums or proceedings.”
These restrictions on revealing information make it almost impossible for the public, and oftentimes even local and state government officials, to know when law enforcement agencies acquire this extremely intrusive technology.
While the report emphasizes the feds take every effort to ensure law enforcement agencies use cell cite simulators within the parameters of the Fourth Amendment, the secrecy raises a serious question: how would you know?
The lack of available information makes it virtually impossible to evaluate the full extent of stingray programs, or what procedures police actually follow. 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.
The information collected by these devices undoubtedly ends up in federal data bases.
The feds can share and tap into vast amounts of information gathered at the state and local level through 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.
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.
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.
The congressional report underscores the importance of placing restrictions on stingray use at both the state and local level. State law should require police to get warrants based on probable cause before deploying stingrays. At the local level, government agencies should be required to develop detailed, publicly available surveillance plans and get local government approval before deploying cell site simulators.