The substance of a court case in which prosecutors backed-off rather than reveal the workings of the sophisticated surveillance device known as a Stingray, is contained in the following court exchange:
“We do have specific equipment that allows us to . . . direction find on the handset, if necessary,”(Sergeant of the police dept.) Corbitt said.
What is that, and how does that work?” McMullen(public defender) asked.
“I can’t go into that,” he said. “Due to [a] nondisclosure agreement with the FBI, we’re not able to get into the details of how the equipment operates.”
Corbitt acknowledged the device was a cell-tower simulator- a Stingray, but instead of demonstrating the equipment and its efficacy, the state offered a plea bargain to the defendant. The case is emblematic of the growing but hidden use of the stingray technology which emanates from the national security world, and is used, with caveats and permission of national spy agencies, by local law enforcement agencies.
For the record, the defendant was a 20 year-old man named Tadrae McKenzie, and the case, though it involved only a small amount of drugs and a weapon, was perceived to be a slam-dunk for prosecutors. However, because of the prosecution’s desire to adhere to federal guidelines regarding information about StingRays, and deny the judges request to show the device and demonstrate how it works, Mckenzie got off with just six months probation.
The ramifications of the sentencing illustrate the lengths that law enforcement will go to keep Stingray’s existence a mystery, not only to the general public, but the courts as well. Instances of surreptitious use of the device have been chronicled in the past but this marks a high-water point in showing how far law enforcement will go to keep the technology secret.
The Stingray device itself is small – about the size of a small suitcase – but it is a potent weapon which elicits signals from all mobile phones within its range- even piercing walls to collect information not only about criminal suspects, but the communications information of potentially hundreds of law-abiding citizens.
Supposedly only to be used in cases of emergency, Tallahassee, FL police admit to it being employed in about 40 instances per year – in a city with a population less than 300,000! Multiply that usage by the 48 state and local law enforcement agencies operating in 20 states that have purchased the technology, and one gets an idea of the scope of the potential problem regarding civil liberty violations.
The secrecy surrounding the device’s use has begun to prompt a backlash around the country, though the push-back has been scattered and sporadic. The biggest blow to its use occurred in Tacoma, Wash and was posted here some months ago when Judges found that in some 200 cases they had no idea that they were issuing orders for use of the Stingray. As a result the state legislature is weighing a bill to regulate police use of the equipment. As yet, there is no case law on how the Fourth Amendment (which prohibits unreasonable searches and seizures) would come into play, but the FBI contends that the device is only employed after an appropriate court order, does not record message content and discards any data not relevant to an investigation.
In the McKenzie case it became obvious that an ordinary cell-tower’s data could not have revealed the location of the suspect’s house, as it can only give a general geographical reference. It was then that it became apparent that a sophisticated device had to have been used. McMullen, McKenzie’s public defender, ruled to suppress any evidence from the search because his Fourth Amendment rights were violated by the Stingray use,
“By scooping up all manner of information from a target cellphone, as well as nearly all cellphones in the general area, a StingRay device engages in exploratory rummaging.”
She also added that the judge who issued the warrant for the surveillance was unaware that a Stingray was to be used. Late in 2014, a judge ruled that the Tallahassee police must show the device that they used, but two days before they were to show the device, the plea deal arrived from the prosecutor’s office.
This case illustrates the lengths that law enforcement will go to deny civil rights and to intrude on privacy in their desire to protect the secretive surveillance technology which they employ. It is apparent that the public must be apprised of such clandestine activities, and hold law enforcement to account whenever possible. Not to do so endangers our freedoms, and contributes to the “technology creep” which threatens to swamp us if allowed to go unchecked.