The Privacy Outcry Sparked by Secret Surveillance

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Why you should care

Because, some critics argue, this high-tech surveillance could be violating your constitutional rights.

This is the first story in a multi-part series brought to you by Participant Media’s all-new documentary series Truth and Power. Read new stories each week on OZY, and watch the latest episodes on Fridays at 10 P.M. ET / PT on Pivot.

In their elusive cat-and-mouse pursuit of criminals, police officers are increasingly turning to a little-known secret weapon: Stingray, aka triggerfish, an IMSI-catcher or cell-site simulator. No, these aren’t code names for under-the-sea, RoboCop-like patrollers. They’re actually surveillance devices that mimic cell phone towers — only they emit a stronger signal — and trick phones into connecting and revealing their location. Some liken these high-tech trackers to the kids’ swimming pool game Marco Polo, where a cell-site simulator triggers “Marco” and nearby phones respond with “Polo” — along with their unique device ID.

But you probably don’t know the half of it. Some of these trackers, which are roughly the size of a backpack, are also capable of recording numbers for a cell phone’s incoming and outgoing calls, as well as what is said or written in calls or texts. And they’re increasingly being used for all kinds of investigative cases, without being bound by public spaces. In fact, Nathan Wessler, staff attorney for the American Civil Liberties Union, says Stingray signals can pass through the walls of people’s homes (and other constitutionally protected areas), pinpointing exactly where a phone is within a building. “They could basically serve as a wiretap,” warns Brian Owsley, an assistant professor of law at UNT Dallas College of Law.

Police departments argue the device can be a useful tool for locating possible suspects. Yet only a few states require a warrant for such surveillance, and critics fear they violate the Fourth Amendment and sometimes get used by agencies that have no business deploying this tech. So far, at least 58 agencies spread across 23 states and the District of Columbia have purchased Stingray surveillance, according to the ACLU. And while experts say some of these agencies include the usual suspects — the National Security Agency, the FBI and the Drug Enforcement Agency — others, including the Internal Revenue Service at one point, may be more surprising.

If the government wants to build a database of location information about where innocent people are located, well, that would be very disturbing.

Adam Schwartz, senior lawyer, Electronic Frontier Foundation

Of course, Stingray technology isn’t the only type of surveillance being used today. Government-owned cameras, automatic license plate readers, telephone record databases and information sharing about citizens’ DNA are all part of a movement that’s sparking a national conversation about when enough is enough. But when it comes to Stingray specifically, there’s the issue of what kind of information gets gathered and how the data is stored. Adam Schwartz, senior lawyer at the Electronic Frontier Foundation, a digital rights group, says the data can place people on a map, within mere meters, and identify whether someone is, say, near a therapist’s office or meeting with a criminal defense lawyer. “If the government wants to build a database of location information about where innocent people are located,” he says, “well, that would be very disturbing.” He and other experts agree that, for the most part, the use of such data remains unknown.

Now some politicians and activists are trying to better protect the privacy of ordinary citizens. For instance, Rep. Jason Chaffetz (R-Utah) introduced a new bill in November that would force law enforcement officials to obtain Stingray warrants and make it illegal for the tech to be deployed without them. “If you are a law-abiding citizen, the federal government should not be able to track your movements,” Chaffetz recently wrote in a statement to OZY. “Clear guidelines that carry the weight of the law are needed to protect the privacy of innocent Americans.” Separately, 28-year-old activist Freddy Martinez won a significant intermediary step this January in a lawsuit against the Chicago Police Department; as a result, the police department is required to produce documents that disclose the use of cell-site simulators, which a judge is set to review in a closed-door hearing. “We can’t have an informed debate about what’s appropriate when it comes to government surveillance if we don’t even know what that surveillance is,” says Martinez’s attorney, Matthew Topic of Loevy & Loevy.

To be sure, some states, such as Washington and Virginia, do require a search warrant to use cell site simulators to identify a cellphone’s location or intercept incoming or outgoing calls and text messages. And following public outcry, the IRS recently announced that it would seek a probable-cause warrant. Meanwhile, in September, the Department of Justice issued a new policy for its own use of cell-site simulators designed to “enhance transparency and accountability,” and media reps for both the DEA and FBI said they also follow the DOJ’s policy. (The NSA didn’t respond to our request for comment.)

Yet given the growing threat and frequency of data breaches, privacy advocates say, the surveillance metadata of innocent citizens may risk falling into the hands of malicious cybercriminals. Ryan Satterfield, founder of the information security company Planet Zuda, explains that metadata gathered from Stingray devices can map out a lot, including where individuals have been and who they’ve been communicating with. The question some are asking is: Do agencies collecting Stingray surveillance data swiftly delete the metadata of innocent bystanders? The answer, however, remains a mystery.

To learn more about Stingray surveillance and other infringements on civil liberties in the digital age, watch all-new episodes of Truth and Power, Participant Media’s new investigative documentary series on Fridays at 10 p.m. ET / PT on Pivot. Preview this week’s episode on Stingray technology:

As a part of Pivot’s “Know Your Rights” campaign, in association with the ACLU of Southern California, you can learn more about your civil liberties in the digital age. To prevent unjust use of Stingray technology, and other surveillance tactics, take action below.

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