Technology Leap Frogs Over the Law – Again

February 18, 2016 by Arkady Bukh

Newfangled machines, called cars, scared the hell out of horses and ran over pedestrians in the early 20th century as their numbers exploded from 200,000 to over 2 million.

By the time government could pass traffic laws, it was too late to stop the growth.

Nothing has changed. New technologies spread practically instantly and take root with almost no legal oversight.

A surveillance tool, “StingRay,” used by law enforcement is just one of several law enforcement technologies leaping past the ability of the judiciary and legislatures to limit their abuse.

Responding to a Freedom of Information Law (FOIL) request, the New York Police Department has revealed it used “StingRays” over 1,000 times between 2008 and May 2015. On top of that, the police department has no written policy on the control of the devices. Instead of a written policy, the NYPD relies on a “pen register order”.

The New York Civil Liberties Union, NYCLU, claims that this type of order does not protect civil liberties as does a warrant. A pen register order only requires the police to provide the information is relevant to an ongoing investigation of a crime they thing is about to be committed.

This is in contrast to a warrant. A warrant requires law enforcement to establish probable cause.

What is the StingRay?

Built by Harris Corporation, the controversial cell phone surveillance device was initially developed for the military and intelligence community. The StingRay and similar devices have become widespread by local and state law enforcement agencies — there lies the controversy.

Controversy

Legal scholars, public interest advocates and judges have criticized the use of StingRay technology. These critics call the use of the devices warrantless cell phone tracking as they have been repeatedly used without letting the court system know. Often a warrant isn’t obtained before deployment.

The newsletter, Electronic Frontier Foundation, has called the device an unconstitutional, all-you-can-eat data buffet.”

Secrecy

The controversy stems mainly from the increased use behind the veil of secrecy. In 2014, police in Flordia reported they had used StingRay over 200 times without disclosing it to the courts. The American Civil Liberties Union has registered recurring requests for Florida law enforcement’s public records.

Law enforcement has resisted multiple judicial requests for information about how StingRay is used. In June 2014, the ACLU published information available from court records regarding the extensive use of StingRay by Florida police. In response, the United States Marshals Service seized the local surveillance records to keep them from becoming public in court.

Often, police have refused to disclose information because of non-disclosure agreements signed with Harris Corporation, the manufacturer of StingRays. The FBI defended these agreements claiming the technology could allow adversaries to circumvent it.

Defeat the StingRay

How can you protect yourself against the StingRay? First, read and learn how they work. To protect your privacy, the easiest thing to do is install a few apps which shield communications content from law enforcement.

Activists, who often need secure communication for protests have used two apps, SnoopSnitch, and Android IMSI-Catcher Detector to warn of the presence of a StingRay in the vicinity.

A non-technical way around StingRay surveillance is just to leave the phone at home. However, if an activist wants to live tweet the protest, but doesn’t want the risk of cops electronically digging around in the phone, they often get a “burner smartphone” just for protests.

“If using a cell phone means being exposed to military-grade surveillance apparatus, the privacy of all New Yorkers is at risk,” says Donna Lieberman, executive director of the NYCLU.

Considering the NYPD’s troubled history of surveilling innocent people, it must at the very minimum place strict privacy policies and secure warrants before utilizing devices like StingRays that can trace people’s lives.