Seth Connell reports using surveillance technology to catch bad guys is certainly a legitimate and noble goal. However, when the privacy of countless innocent people is put at risk, and when the government consistently hides information about this technology, citizens should be very concerned. In California, that is exactly what is happening right now.
In 2011, the public finally learned about a surveillance tool called a ‘StingRay’ device after a prison inmate combed through government documents, wondering how he was caught. He was sentenced for tax fraud, and was baffled how the police were able to catch him. Police were able to track him through a seldom-used Verizon wireless card, according to the Los Angeles Times.
“It wasn’t just that [investigators] were able to get historical call data from Verizon,” said Linda Lye, an attorney for the American Civil Liberties Union, which filed an amicus brief to support him. “They were able to pinpoint him to a particular apartment in a particular apartment building, which was far more precise.”
That was 6 years ago, but the technology has been used for the past 20 or more years. Yet when public record requests are made, the documents obtained are generally heavily redacted and contain little useful information about what the device does, or how it has been used, the LA Times has learned. A law passed in 2015 aimed to provide more oversight and transparency with these kinds of devices.
In 2015, California lawmakers passed the sweeping Electronic Communications Privacy Act, which prohibited any investigative body in the state from forcing businesses to turn over digital communications without a warrant. That same year, state Sen. Jerry Hill (D-San Mateo) introduced legislation to compel local law enforcement agencies to disclose more information about the use of stingrays in California.
“Our country has a rich history of democracy and civilian oversight,” Hill told a Senate judiciary committee that May. “The stealthy use of these devices undercuts the very nature of our government.”
It is one of those rare California laws that is actually good. Public oversight is needed in a system of free government, and when government agencies shroud their activities in secrecy, that begins the end of that free government. For no society can be truly free if its government operates under a veil of secrecy that makes it immune to public discourse.
Yet, with this StingRay device, that is exactly what many police departments are doing. If it were only criminals and terrorists who would be subject to these devices (all in line with the Fourth Amendment’s requirements) that would be a different argument; but the StingRay device mimics a cell phone tower and captures all devices in its proximity, being able to locate a person’s device (and that person) even in a particular room in a building.
When the LA Times sought further information about the device’s use, most documents were heavily redacted, and provided little or no insight into what kinds of data the device can collect.
Seventeen of the 21 agencies polled by The Times said they did not keep or declined to provide data on how often and in what types of cases they used stingrays.
Privacy advocates point to a loophole in the law that allows some law enforcement agencies to avoid reporting their use of the devices. Police departments that partner with another agency that owns and uses a stingray in an investigation are not required to publish their own guidelines for using the equipment.
And additionally, because of specific loopholes regarding sources of funding, many of the agencies have simply ignored the law entirely.
[A] Los Angeles Times review of records from 20 of the state’s largest police and sheriff’s departments, plus the Alameda County district attorney’s office, found some agencies have been slow to follow or have ignored the law. Several that partner with federal agencies to work on cases are not subject to the law’s reporting requirements. The result is that little information on StingRay use is available to the public, making it hard to determine how wide a net the surveillance tools cast and what kind of data they gather.
If an agency can skirt the law by partnering with federal agencies, it only makes sense that they would. But especially when dealing with controversial surveillance devices like the StingRay, the public needs to know about what the device does, and how innocent civilians’ privacy will be protected against intrusion.
Openness in government is necessary for personal privacy. If allowed too much secrecy, the government will search into all areas that it can access, hoping to find someone doing something. Rather than targeted and specified searches, as the Fourth Amendment requires, this kind of device and others that will follow are dangerously close to general warrants and searches, just like the British used before the American Revolution.
And if you think the government would not issue a general warrant, think again. That’s exactly what it did to Verizon. More oversight is needed with this kind of surveillance technology, because if there is not, it will be the innocent who ultimately suffer the consequences.