There's a concept in journalism that applies to real life: the third time something happens, you can define it as a trend.
This week, the New York Supreme Court tore apart the Erie County Sheriff's Office's refusal to disclose documents that the American Civil Liberties Union (ACLU) had requested about its use of Stingrays, the controversial cell site simulators that allow for tracking cell phone activity in a general area.
Though the documents haven't been released yet, they've now been ordered released by the court. That marks three times this has happened in recent months: first with Charlotte, North Carolina, then with various agencies across Florida.
If continued, the trend could start eroding longstanding efforts to keep any information about Stingray devices public. As previous reports have revealed, Harris Corporation, the Florida-based manufacturer of the devices, along with the FBI, have long compelled agencies to sign non-disclosure agreements about the product. The FBI even goes so far as asking local departments to drop evidence at trial when it might be necessary to tell the court how a Stingray was used in an investigation. Harris Corporation did not immediately respond to a request for comment for this story.
Tuesday's New York decision, written by Hon. Patrick H. NeMoyer, tears into the non-disclosure agreements, essentially saying that government transparency is more important than the agreements, and that police departments should be more specific if they are seeking exemptions. From the court:
The court also didn't entertain the Erie County Sheriff's Office's argument that certain documents are protected as "inter-agency communications" or that they would "reveal criminal investigative techniques." That information has an "undeniable impact upon the taxpaying public," and therefore should be released regardless, the court wrote.
The ACLU lists 20 states, plus the District of Columbia where it is aware cell site simulators are being used. It lists 30 states where police use of the devices is unknown.
Based on what has previously been revealed from the Florida disclosures, we have an idea of what might be coming out of the Erie County documents. Here's a short rundown of what has been revealed about Stingray usage, to date:
Florida, via Fusion:
[A]ccording to a detailed list of 250 investigations that involved the use of a Stingray provided by the Tallahassee Police Department, the most common investigations were for robbery, theft, and burglary. Other examples include cell phone tracking of suicidal persons, suspected murderers, and auto theft suspects, to name a few. Not one of the investigations revealed in the Tallahassee documents (the “most extensive” disclosure of information the ALCU received) appears to involve anything having to do with homeland security or terrorism.
In one of the rare terrorism-incidents detailed by the records, the Palm Bay Police Department actually borrowed a device from the manufacturer, which is located just down the road, to investigate a bomb threat at a local school.
The Miami Police Department said it had used Stingrays in 59 closed criminal cases within a one-year period ending in May 2014, and the Florida Department of Law Enforcement listed a total of 1,835 Stingray uses. Records fees to obtain those specific documents ran in the several thousands, highlighting what the ACLU says is a widespread effort to obscure references to Stingray devices in police reports, making it unreasonable, if not impossible to comprehensively track their usage.
Instances where Stingrays are referred to as “electronic surveillance measures” or even simply as “confidential intelligence” in police reports are pinpointed in the ACLU’s report that accompanied the release of the documents.
Charlotte, via the Charlotte Observer (newspaper has not disclosed all files and cases related to Stingrays):
[I]nterviews and documents collected from the Observer’s Freedom of Information Act requests show CMPD uses the technology on a weekly basis to track suspects in violent felonies, kidnappings and missing persons cases.
Local and state leaders told the Observer they were surprised CMPD captured phone data from innocent people, and some called for more transparency.
“The thought of police or another agency collecting data on communications devices is troubling,” Charlotte City Councilman John Autry said. “I understand the balance between security and privacy, but I think we should honor the privacy protection in the Constitution. What happens to the data? Who sees it? Who has access to it?”
Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.