New York Bill Would Prohibit Warrantless Stingray Spying, Hinder Federal Surveillance Program

By Mike Maharrey

A bill introduced in the New York Assembly would ban the use of “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations. The proposed law would not only protect privacy in New York, but would also hinder one aspect of the federal surveillance state.

Asm. Sean Ryan (D-Buffalo) introduced Assembly Bill 3071 (A3071) on Jan. 26. The legislation would add cell site simulators to current state statutes prohibiting video surveillance and “eavesdropping.” The legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

There is an urgent need to limit stingrays in the state. Last summer, documents obtained by the ACLU revealed two local New York law enforcement agencies spent over $550,000 purchasing and maintaining stingray devices. The documents show the departments went to great lengths to hide the existence of the devices and rarely obtain court orders for their use.

A3071 would require a warrant before a law enforcement agency could use a stingray with only a few exceptions. Police would only be permitted to use a stingray without a warrant in a few specifically defined emergency situations.

The legislation also includes provisions to limit the information collected and its storage.

An order authorizing eavesdropping through  use  of  a  cell  site simulator  device  must  include  a  provision  directing  that  the law enforcement agency (i) take all steps necessary to limit the  collection of  any  information or metadata to the target specified in the warrant, (ii) take all steps necessary to permanently delete any  information  or metadata  collected  from  any  party  not  specified  in the applicable warrant immediately following such collection  and  must  not  transmit, use,  or retain such information or metadata for any purpose whatsoever, and (iii) delete any information or metadata collected from  the  target specified in the warrant within thirty days if there is no longer probable  cause  to  support  the belief that such information or metadata is evidence of a crime.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

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As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of A3071 would represent a major blow to the surveillance state and a win for privacy.

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A3071 was referred to the Assembly Codes Committee where it must pass by a majority vote before moving forward in the legislative process.