by Joshua Brownlee
You don’t have to wear a tinfoil hat to see potential problems when local police use controversial technology and massive data surveillance techniques to secretly acquire people’s information. Citizens (especially lawyers) need to start being mindful and actively vigilant against these techniques and the Constitutional ramifications that inevitably come up with their wide spread use.
Gwinnett County Police Department and an unknown number of other local police departments are currently using technology that most people associate with the National Security Agency (N.S.A.) or Federal Bureau of Investigation (F.B.I.). Specifically, Gwinnett Police are using devices commonly known as Stingray. Stingray machines have the capability to hijack all cell phones within range of the device and force the captured cell phones to send all traffic through the Stingray machine instead of the closest tower owned by the phone’s actual service provider. Stingrays and their smaller hand held cousins Kingfish can also locate cell phones by using the International Mobile Subscriber Identity (IMSI) of individual phones. Keep in mind, once someone gets your IMSI, it becomes incredibly easy to use your phone from a different location from where your phone physically is. When we say “use” we mean collecting call logs, digital content, storage abilities, frequency strength, and even using your cell phone as a wiretap. Let’s be clear up front, IMSI isn’t a phone number, this is like your smart phone’s social security number. They are encrypted and cautiously given out so that hackers can’t mess with your phone. Another important thing to keep in mind is that cell phone providers and customers are equally in the dark when a Stingray unit activates and hijacks large numbers of IMSI numbers from the provider’s cell towers. Police just turn on the device and they suddenly have access to anyone’s IMSI that is within range. If you are an attorney, this should deeply trouble you. What if police set this off near a court house? Suddenly prosecutors, judges, defense attorneys, jurors, witnesses, and defendants have potentially had their smart phones compromised. A device with such destructive potential needs to be closely supervised with complete transparent accountability, or it should not be used at all. Unfortunately, these devices are routinely hidden from defense attorneys, citizens, and even prosecutors.
Gwinnett County District Attorney Danny Porter was interviewed about Stingray devices by 11 Alive News in 2014. During that interview Mr. Porter stated that devices only “look for the location of one phone.” The Gwinnett County District Attorney went on to say that criminal defense attorneys are only told that police used “cell phone location technology.” Mr. Porter admitted in the interview that he would not disclose court orders, contracts with private contractors, or verification on the type of devices used to defense attorneys. See: 11 Alive News Story.
Mr. Porter’s responses are troubling considering what is happening in cities and states across the country. Florida, New York, Maryland, Illinois, Wisconsin, and California to name a few. What is equally troubling is that Baltimore and Milwaukee police departments may have not only been instructed by Federal Agents to hide the use of Stingray devices from defense attorneys, but sometimes even judges and prosecutors! Click on Baltimore and Milwaukee for more information.
In 2014 U.S. Marshals sent emails instructing local police concerning the disclosure of the device in a Probable Cause Affidavit (PCA). One U.S. Marshal wrote:
If this is in fact one of your cases, could you please entertain either having the Detective submit a new PCA and seal the old one, or at minimum instruct the detectives for future cases, regarding the fact that it is unnecessary to provide investigative means to anyone outside of law enforcement , especially in a public document. Please note that I am passing information on to you, and I have not been able to confirm that the case or detective are affiliated with NPPD.
(Emphasis added). U.S. Marshal’s Email. Reading this email it is clear that Federal Agents do not want local police to disclose: when IMSI’s are used, how they are used, or even confirm their existence. Click the link for more information click on: More information on U.S. Marshal’s use of Stingray.
Over the last few years a pattern has emerged showing these are not isolated agents misunderstanding Federal rules concerning surveillance, but rather, a wide spread policy throughout law enforcement. One of the companies that manufactures Stingray devices is Harris Corporation. An example of their nondisclosure agreement can be found at: Harris Corp. Nondisclosure Agreement.
Gwinnett has had Stingrays since at least 2010. Gwinnett County Receipt for Stingrays. Despite the possibility and history of abuse of this technology, District Attorney Danny Porter has assured citizens that police are getting warrants every time Stingrays are used. Is that enough? Should we just blindly trust Gwinnett’s top prosecutor? I’m not saying he is a horrible lawyer or bad person. What I am saying is there is no check for overzealous use of this surveillance system. Something else to keep in mind, Danny Porter is also the Chairman of the Prosecuting Attorney’s Council of Georgia. In 2015 Mr. Porter backed state legislation that would make it easier for police to get secret warrants. A draft of Georgia SB 94 allowed:
4) Use of Certain Devices in Search Warrant Execution – This bill allows other personnel acting on behalf of a peace officer to assist in the execution of a warrant. The bill also allows the use of a “device” when executing a warrant. A device means an electronic instrument used for overhearing sounds or for observing images. This also includes instruments that can be used to intercept a wire, oral, or electronic communication. Certain instruments are excluded from the definition of device, such as hearing aids or “trap and trace” devices. 5) Records of Search Warrants and Supporting Documents – This bill prevents search warrants from being subject to public inspection until they are executed or returned as not executed. This applies to the documents supporting the warrant as well. 6) Ex Parte petition for Sealing of Search Warrants and Supporting Documentation – SB 94 allows a prosecuting attorney to petition the court ex parte for a search warrant and supporting documentation to be filed under seal with the clerk. The prosecutor must show “reasonable cause” to believe that disclosure of such materials may endanger the life of an individual, cause an individual to flee from prosecution, lead to destruction of evidence/ intimidation of a witness, or otherwise jeopardize an investigation or delay a trial. A judge may order such sealing for up to 60 days, and the period of sealing cannot extend beyond the return of indictment or filing of accusation where evidence seized may be admitted. If an individual is not available, a copy of the warrant must be left in a conspicuous place. If the warrant has been ordered to be sealed, however, a copy may not be left in a conspicuous place.
http://www.peachpundit.com/wp-content/uploads/2015/03/SB_94_Summary.pdf. The District Attorney’s legislation attempts to harness the full capability of Stingray systems while shielding law enforcement from discovery or potential civil liability.
Who else is Using Stingray?
The short answer is we don’t know. The American Civil Liberties Union (ACLU) has been trying to get more information on Stingrays for years through open records requests. The ACLU has posted a map of the States using Stingray or IMSI catchers (doesn’t include Federal Agencies). The map and corresponding article indicate:
The ACLU has identified 61 agencies in 23 states and the District of Columbia that own stingrays, but because many agencies continue to shroud their purchase and use of stingrays in secrecy, this map dramatically under represents the actual use of stingrays by law enforcement agencies nationwide.
What are the Constitutional Implications with IMSI Catchers?
The Fourth Amendment:
The Fourth Amendment protects people from unreasonable searches and seizures without a warrant supported by probable cause. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The reasonableness of a search is determined by asking whether the government invades a matter in which a person has an expectation of privacy that society is willing to recognize. Kyllo v United States, 533 U.S. 27, 33 (2001). The Supreme Court has held “wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Katz v. United States, 389 U.S. 347, 359 (1967). Recently, Chief Justice Roberts wrote for the majority of the Court holding:
The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13-212, p. 26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.
Riley v. California, 573 U.S. ___ (2014). The Chief Justice went on to describe the multipurpose and massive storage capabilities of modern smartphones. Id. Government authorities have typically relied heavily on a Supreme Court case called Smith v. Maryland, 442 U.S. 735 (1979). Smith dealt with electronic devices that recorded phone numbers called pen registers. The Court held there was no expectation of privacy (and therefore no search) in pen registry numbers because the caller freely gave the information to the cell phone provider. Chief Justice Roberts addressed this issue head-on stating:
We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745-746, 99 S.Ct. 2577. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.
Finally, at oral argument California suggested a different limiting principle, under which officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart. See Tr. of Oral Arg. in No. 13-132, at 38-43; see also Flores-Lopez, 670 F.3d, at 807 (“If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.”). But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form. In Riley’s case, for example, it is implausible that he would have strolled around with video tapes, photo albums, and an address book all crammed into his pockets. But because each of those items has a pre-digital analogue, police under California’s proposal would be able to search a phone for all of those items — a significant diminution of privacy.
Id. The Fourth Amendment Stingray battle revolves around the question: whether IMSI catchers constitute a search? It seems there is a legitimate argument that collecting IMSI would constitute a search under Fourth Amendment analysis but lawyers and programmers need to hammer out the details. Even if a warrant is acquired for a specific target, the machine is still hijacking all other phones in range. The warrant does not include the innocent phones caught up in the Stingray’s potential sweep.
Due Process Issues and Ability to Challenge the Scientific Findings:
Criminal defendants are entitled to exculpatory evidence that is material to guilt or punishment in a criminal case. Brady v. Maryland, 373 U.S. 83 (1963). Exculpatory evidence should include knowing which device was used to locate the defendant and whether that device was maintained properly with appropriate calibrations. Exculpatory evidence may also involve the specific training (or lack of training) law enforcement officers have before using the IMSI catchers. Defense attorneys are routinely allowed to have access to the personnel and equipment used to analyze D.N.A., blood alcohol, narcotics, ballistics, fiber analysis, 911 dispatch operators, and a host of other specialties that gather evidence for law enforcement. Whether it’s D.U.I. or D.N.A. an analyst must disclose the method used, training, and facts to establish a proper foundation for reliable evidence. Under Georgia law, felony cases are also subject to reciprocal discovery. Meaning that once a defendant opts in to discovery, both sides agree to share evidence. According to O.C.G.A. § 17-16-4:
the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant. Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.
(Emphasis added). O.C.G.A. § 17-16-4. By opting into discovery criminal defendants have an expectation that the device used to hijack their cell phone data or track their presence will be disclosed as well as any Stingray call logs, standard operating procedure, and witnesses used to obtain their data. Given District Attorney Danny Porter’s comments to channel 11, this is not being done on a regular basis in Gwinnett County. When methods aren’t disclosed, bad habits form. An investigator in Florida was asked about maintaining quality assurance of the device during a motion to suppress hearing. The investigator stated “well, it’s very difficult to say quality assurance. The — in hundreds of uses the equipment has proven completely reliable.” Motion to Suppress in Florida v. James Thomas (page 13). There are two troubling things about the investigators response. First, he never answers how they check the accuracy of the device. He basically just says it’s reliable because we use it. Second, he admits their department has used the device hundreds of times. Numerous uses without transparent methods that can be checked in an adversarial judicial system is toxic to the whole process.
First Amendment Issues:
There are also possible threats to the First Amendment. What if law enforcement use these devices at political rallies or other large gatherings. It could have ramifications on how people express themselves at public events and how they are treated by law enforcement. If supporters of Bernie Sanders or Donald Trump are having their phones monitored around political rallies, then at a minimum law enforcement can identify who attends what rally. At worst they can monitor communications and content of cell phone users. This type of speech monitoring is creepy enough in the hands of an unknown F.B.I. agent, but police live in our communities, and they are subject to the same temptations, jealousy, and lack of judgment as anyone (they’re brave human beings for the most part, but still human beings).
Have There Been Constitutional Violations?
Yes. The number and frequency are largely unknown because most people that are victims/targets of IMSI catchers are unaware of their smart phone being hijacked (including defendants in criminal cases and their attorneys). Possible Stingray violations.
Are we Powerless?
No! Unlike a number of other problems, there is something normal people can do about this problem. Engineers and computer programmers have developed systems to detect IMSI catchers. People should encourage this technology. Also, using “4G only” networks may prevent IMSI catchers from intercepting and using decryption on your phone’s data. This will eventually be overcome with new technology (if it hasn’t already). Most importantly, this isn’t about stopping the F.B.I. or N.S.A., this is about stopping your local police force from using and abusing IMSI catchers. Make local District Attorneys, Solicitors, Chiefs of Police, and Sheriffs accountable and on the record about their policies and opinions. There are a number of District Attorneys up for re-election this year and they should be answering questions about this issue. Individuals can make a huge difference at the local level. Remember, this is not a political party issue. Both Washington and Utah State Legislators have both openly discussed banning IMSI catchers. Stingrays and their progeny hijack anyone’s phone within striking distance, they don’t distinguish between political parties.
Attorneys that practice civil rights or criminal defense in Gwinnett and other major Georgia metropolitan areas have a duty to their clients to use every resource and legal tool available to determine if IMSI catchers are being used in their cases. Some helpful thoughts:
- Look out for convenient arrests where the officers “happened to be there”.
- Keep in mind that investigators probably used the device close to where your client was arrested.
- Don’t be afraid to use open records to find out if Special Investigation Units were involved in the arrest. Listen out for phrases like “cell phone data collection, gps locator, or cell phone locator”.
- Draft a motion that particularizes issues and requests regarding Stingray Surveillance. Don’t just throw some words in your omnibus motion. No one reads our omnibus motions half the time and this issue needs to be openly argued from the beginning to get the judge on board.
- Look at cell phone tower records from cell phone providers. Be on the lookout for ghost towers marked as zero or other strange data that doesn’t fit in the context of the records. Don’t be afraid to call the providers and act like you don’t know what you’re looking at (cell phone towers are confusing enough without Stingray).
- Map out towers on google maps and find out their range when you are comparing tower locations.
- Be aware that there are a number of apps and devices that detect IMSI capture equipment. One device found 18 different IMSI capture devices in Washington D.C.
Law and technology are constantly changing, and that’s not a bad thing. IMSI catchers actively force phones off the service provider. It is possible this action leaves some sort of digital footprint on a phone. If that’s true, attorneys may be able to get with programmers to make an app that can run a diagnostic to see if a phone has been pirated in the past. Civilians and criminal defendants who have been hijacked could then openly fight back once they know they’ve been targeted. If you suspect such techniques are being used in one of your cases, let’s put some ideas together. Unlike many other professions, lawyers in specific practice areas are incredibly organized. Georgia criminal defense and civil rights attorneys have the knowledge and dedication to take this issue on.