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by Mike Maharrey | TENTHAMENDMENTCENTER.COM | May 27, 2015
SACRAMENTO, Calif. (May 25, 2015) – A bill that would take the first step in limiting the use of “stingrays” to track the location of phones and sweep up electronic communications passed out of the state Senate on Friday. The bill would not only protect privacy in California, but would also hinder part of the federal surveillance state.
Cell site simulators, known as “stingrays,” spoof cell phone towers. Any device within range is essentially tricked 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.
Sen. Jerry Hill introduced Senate Bill 741 (SB741) to prohibit a local agency from acquiring or using a stingray device unless “approved by a resolution or ordinance adopted by its legislative body at a regularly scheduled public meeting where the public has a reasonable opportunity to comment.” The bill also requires the resolution or ordinance to set forth policies on stingray use based on specific guidelines outlined int the legislation.
SB741 passed the state Senate by a vote of 39-0 on Friday.
The bill establishes general guidelines law enforcement agencies must follow when deploying stingrays, and requires local governments to outline them in the ordinance/resolution authorizing their use. The guidelines include a requirement to “maintain a usage and privacy policy in order to ensure that the collection, use, maintenance, sharing, and dissemination of information and data gathered through the use of cellular communications interception technology is consistent with respect for an individual’s privacy and civil liberties.” The agency must make the policy publicly available. The bill also requires law enforcement agencies to establish training policies. and to set standards for retention, sharing and destruction of data.
While the bill wouldn’t end the use of stingrays by California law enforcement, it would act as a blanket prohibition on secret deployment of the technology as it occurs on a daily basis across the country, and it would require police departments to utilize the technology with guidelines not set solely by the departments themselves in a fox guarding the hen house scenario. SB741would create an environment of transparency around stingray deployment, and makes law enforcement accountable to elected officials and the general public.
This represents a very positive step forward and a major blow to the status quo – unlimited secret surveillance.
Recent revelations prove police departments have used stingrays for surveillance under a shroud of secrecy with the encouragement and support of the FBI. Last summer, documents reveals the Tacoma Police Department used stingray devices in virtual secrecy for six years. According to the Tacoma News Tribune, “Neither the Pierce County Prosecutors Office, nor public defenders — not even superior court judges — were aware of Tacoma police using this surveillance technique.” The paper reported that Police Chief Don Ramsdell refused to comment for its story, citing an FBI non-disclosure agreement.
“Sunshine is a powerful antiseptic,” OffNow founder and deputy director Michael Boldin said. “Passage of this bill would shine a bright light on the use of stingray technology in California, and would certainly have a practical effect of limiting their use.”
Passage of SB741 would create a foundation for further action to limit stingray use. The next step would entail establishing a warrant requirement for use of a stingray device.
IMPACT ON FEDERAL 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, as alluded to by the Tacoma police chief. 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.The Baltimore Sun reported that last fall, 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 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 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 sate 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. This represents a major blow to the surveillance state and a win for privacy.
SB741 now moves to the state Assembly, where it will first need to be passed by a committee before the full Assembly has an opportunity to vote on it.
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