New York City, NY — The New York Civil Liberties Union (NYCLU) has revealed that the New York Police Department has been using cell-site simulators, also known by the brand name Stingray, since at least 2008. This marks the first time the NYPD’s cell phone surveillance program has been made public.
The new documents show the NYPD used the Stingrays over 1,000 times between 2008 and May 2015. They also highlight that the nation’s largest police department has no written policy on the use of cell-site simulators. The police records indicate the devices were typically used in investigations of homicide, assault, kidnapping, drug trafficking, and rape, but were also used to investigate money laundering and identity theft.
Anti-Media has written extensively about how cell-site simulators are being used to track suspected criminals while largely operating without oversight from local, state, or federal authorities. Exactly how the devices operate and what data they collect and/or save has been unknown because of the vast degree of secrecy surrounding the tools.
The Electronic Frontier Foundation describes the Stingray as “a brand name of an IMSI (International Mobile Subscriber Identity) Catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cellphone tower– to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not – and tricks your phone into connecting to it.”
The Harris Corporation, the manufacturer of the Stingray, has maintained a great deal of covertness surrounding these tools. Truth In Media previously reported on documents that revealed the Harris Corp. worked with the Federal Communications Commission to maintain a high level of secrecy.
Donna Lieberman, executive director of the NYCLU, said the privacy of every New Yorker is at risk because of the NYPD’s tactics. “Considering the NYPD’s troubling history of surveilling innocent people, it must at the very least establish strict privacy policies and obtain warrants prior to using intrusive equipment like stingrays that can track people’s cell phones,” Lieberman wrote.
An important issue to understand when it comes to cell phone surveillance is the type of requests law enforcement agencies make. Typically, when law enforcement wants to use a surveillance device, they go to a judge and seek a court order or a warrant. When the NYPD wants to use a stingray surveillance device, they ask judges to issue a “pen register” or “trap and trace” order, which is not exactly a warrant. A pen register is a more dated type of application that allows law enforcement to gather the numbers dialed from older landlines. This creates a situation where many judges have approved Stingray surveillance without knowing it and without understanding the full capabilities of the device.
Following the release of the documents, the NYPD released a statement to Ars Technica. J. Peter Donald, an NYPD spokesman, told Ars the NYPD “ensures we have established probable cause, consults with a District Attorney, and applies for a court order, which must be approved by a judge. In rare instances, the NYPD may use this technology in emergency situations while we seek judicial approval. This would be in instances where the life or safety of someone is at risk.”
Donald went on to say that New Yorkers’ privacy is not at risk, but rather, the safety of New Yorkers is at risk “without the limited use of this technology to locate dangerous fugitives.” Donald also said the NYPD “does not capture the contents of communications, as the NYCLU stated.”
However, newer models of the Stingray, including the Stingray 2 and Kingfish, are indeed capable of gathering contents of cell phones.
The news from the NYCLU comes shortly after the American Civil Liberties Union of California revealed that Anaheim police maintain an inventory of Stingrays, including surveillance devices designed for Cessna planes. As the public continues to learn the full extent of stingray programs, it seems inevitable the technology — and its controversial applications — will eventually make it to the Supreme Court.
This type of legal challenge is increasingly likely, as it was recently reported that the 7th Circuit federal appellate court will become the first federal appeals court to examine Fourth Amendment issues related to cell-site simulators. The 2013 case, known as United States v. Patrick, involves Milwaukee resident Damian Patrick, his arrest for a probation violation, and the likelihood that police illegally used a stingray to locate him.
What is the public to do when a growing number of local, state, and federal agencies are making use of surveillance devices once intended for military conflicts? How can we resist such daily intrusions into our lives?