It’s not just the FBI, CIA, and NSA that may be trying to intercept your communications, and using sophisticated technology to do it. City and state police departments are adopting tools like video cameras, license-plate readers, drones, programs that scan billions of phone records, gunshot detection sensors, and cell site simulators, a technology that agencies have been adopting in secret, touching off a major debate on privacy issues.
Writing for The New York Times, Matt Richtel reports that StingRay, a powerful surveillance tool being adopted by police departments across the country, requires law enforcement officials who buy it to sign a nondisclosure agreement that prevents them from saying just about anything about the technology. StingRay is used to track cell phones, and according to the local and federal agencies that want to protect its secrecy, any disclosure about it could reportedly enable criminals to circumvent it.
In a publicly sworn affidavit, FBI supervisory special agent Bradley S. Morrison said that “disclosure of even minor details” could harm law enforcement efforts by enabling “adversaries” to put together the pieces of the technology like assembling a “jigsaw puzzle.” However, the tool is adopted in such secrecy that even agencies interested in purchasing the technology aren’t always sure what they’re buying, and the extent of the privacy concerns it could raise is unclear to both courts and the citizens its use affects.
The nondisclosure agreements for the cell site simulators are overseen by the FBI and typically involve the Harris Corporation, a multibillion-dollar defense contractor. Model names for the tool include KingFish, AmberJack, HailStorm, and StingRay, all manufactured by Harris. More generically, it’s known as a cell site simulator or IMSI catchers. A cell site simulator takes the form of a small, rectangular device that intercepts cell phone signals by acting like a cell tower, and can capture texts, calls, emails, and other data.
All-you-can-eat data buffets
The Washington Post explains that cell phones connect to nearby cell towers to link to the network in order to send or receive data, calls, and messages. When the StingRay is turned on, it simulates a cell tower, forcing phones in the area to register with it even if they aren’t in use. Some models, once “locked” to a target phone, can collect metadata such as the phone numbers dialed. Some devices can collect data showing the most recent cell tower a phone connected with.
StingRay critics are particularly concerned that the technology, unlike other phone surveillance methods, can scan all cell phones in the area where it’s being used, not just the target phone. An affidavit filed in 2011 acknowledged that the device could gather identifying information “from all wireless devices in the immediate area of the F.B.I. device that subscribe to a particular provider,” including information from the “innocent, nontarget devices” of law-abiding citizens.
In 2012, the Electronic Frontier Foundation referred to cell site simulators as “unconstitutional, all you can eat data buffets.” In 2013, the American Civil Liberties Union (ACLU) of Northern California sued the Justice Department to force it to disclose more about the technology. In response, the government said it had asked the courts to allow the technology to capture content, not just identify subscriber location.
According to U.S. News, when they’re pushed to divulge information about the technology, many police departments invoke a non-disclosure agreement between the department and the FBI, which warns that disclosure of the existence or capabilities of the StingRay could result “in the FBI’s inability to protect the public from terrorism and other criminal activity.”
The agreement forbids the signee from disclosing information about the device from the public, and requires the signee to inform the FBI of any Freedom of Information Act requests or court-mandated disclosures. Many departments have also signed a non-disclosure agreement with the Harris Corporation, which they cite when refusing to comply with records requests. But ACLU Lawyer Nathan Wessler says that such an agreement should have no bearing in court. “The government cannot contract out of its constitutional obligations.”
Privacy in the public arena
While the nondisclosure agreements make it difficult to determine how widely the technology has been adopted, news reports from around the nation make it clear that local and state police agencies are using it in a growing number of locations. According to the ACLU, at least 48 state and local law enforcement agencies in 20 states and the District of Columbia have bought the devices. Some departments have used the tool for several years, and funds to pay for the device come from individual agencies or sometimes from federal government through Homeland Security grants. Harris’s nondisclosure agreements give the company extreme power over privacy in the public arena.
What The Washington Post characterizes as a “gag order” imposed by the FBI has left the public, judges, and criminal defendants in the dark as to how the tool works. The secrecy has also hindered debate over whether the technology respects Americans’ civil liberties, and sparked backlash against police use of the tool. Additionally, there is virtually no case law on how the Fourth Amendment, which prohibits unreasonable searches and seizures, should apply to the technology.
The Electronic Frontier Foundation noted that these devices enable the government to conduct the kind of broad searches that amount to “general warrants,” the type of search that the Fourth Amendment was written to prevent. The foundation characterizes the StingRay and devices like it as “the digital version of the pre-Revolutionary war practice of British soldiers going door-to-door, searching Americans’ homes without rationale or suspicion, let alone judicial approval.” When police turn on a cell site simulator, they violate the privacy of hundreds, if not thousands, of bystanders who aren’t suspected of any crime.
So far, there’s no easy way for consumers to tell when a cell site simulator is spying on them, though an app called SnoopSnitch enables users of rooted Android handsets with a Qualcomm chip to scan for radio signals that indicate a transition to a StingRay from a legitimate cell tower. While the app can’t protect your phone from connecting to a cell site simulator in the first place, it will let you know that surveillance is being conducted in a given area. Another ongoing Android-based project, the AIMSICD, aims to help users detect and avoid cell site simulators. It’s unclear so far to what extent the StingRay can break the encryption used in secure messaging and calling apps.