Several law enforcement agencies around the Bay Area are using a controversial surveillance technology that can track people and collect data in real time.
StingRays as they’re more commonly known- act like a kind of cell tower — attracting all the surrounding wireless devices on the same network…and retrieving their data.
Police departments in San Francisco, Oakland, San Jose and Fremont are all using these devices, as is the Alameda County District Attorney’s office. News 10 in Sacramento revealed the extensive use of this surveillance tool through a public records request.
KQED News interviewed Hanni Fakhoury is with the Electronic Frontier Foundation, which advocates for civil rights in the digital world.
Can you start off by explaining more about what kind of information the StingRay can gather? Can it eavesdrop on actual conversations?
It can capture conversation. There have been some assurances that these specific sorts of StingRays being used by local law enforcement aren’t doing that, but we do know that they have the capability of doing so.
They also have the capability of capturing the metadata or the information about how you communicate. And in these specific instances of local law enforcement using them, they’re using that information to pinpoint the person’s location.
It’s my understanding that this technology is being used by some law enforcement without a warrant. An Oakland Police Department spokesperson told me in an email that prior to 2009 no warrant was required — but that now, depending on how it’s being used, a search warrant may or may not be required. What’s your understanding of how often warrants are being obtained?
That’s a big question mark because there’s a lot of secrecy surrounding the use of these devices. I’m not quite sure why the shift in 2009, and I’m encouraged that they claim they are using search warrants today, but I will note that there has been some concern revealed through public records requests that the ACLU of Northern California did, that some federal court officials, some federal judges, were concerned that law enforcement requesting orders to use these devices weren’t being completely forthright with the judges. That they were in fact using StingRays to get some of this information. And so, again, there’s a lot of uncertainty about it. They certainly should be using a search warrant, because these devices capture very rich, detailed and intimate information about a person’s location and how they communicate and who they communicate with, and also have the capability to catch the actual content of conversation.
The StingRays are coming from Homeland Security through federal grants — does that mean they are supposed to be used to fight terrorism– rather than more ordinary crime? Are there any guidelines regulating the use of this technology?
Well you certainly see that with the requests made by local law enforcement agencies that purchase these devices. They are clearly trying to sell the city council or the mayor’s office or whoever it may be, that these are devices that can be used really for two purposes: terrorism as well as emergency scenarios that require search and rescue. But the reality of what we are seeing on the ground is that these are being used in a garden variety of criminal cases. You mentioned the Oakland arrest statistics in the reports of the OPD, and if you look through the specific cases they’ve talked about, these are all garden variety kinds. Murder, robbery, kidnapping. I’m not trying to say those aren’t serious crimes, and that they are awful things that should be investigated, but they are not national security concerns in quite the same way we tend to think of that term.
Given your concern, and others at the ACLU, are we to expect some constitutional challenges to these devices?
I would think so, and there’s already been a little bit of litigation on the use of these devices in state and federal courts. And there’s been a lot of litigation on just getting the information about the use of these devices that would be necessary to actually fully litigate the constitutional issues.