Privacy SOS

We just asked the Boston Police for records about how it spies on our cellphones

The ACLU of Massachusetts this week filed a public records request with the Boston Police Department (BPD) seeking information about its cell phone tracking technology. For too long, the department’s use of controversial cell site simulators has been shrouded in an FBI-mandated cloud of secrecy. It’s many years past the time the public should have learned exactly how, in what circumstances, and with what legal authority the police are using these powerful tools to track—and perhaps even eavesdrop on—residents and visitors in Boston. (Just this week, a judge in Chicago rejected a Chicago police request to throw out a freedom of information lawsuit related to CPD’s cell site simulators.)

The transparency we trust will result from our public records request has been a long time coming.

After stonewalling information requests for years, in November 2015 the BPD finally disclosed a document pertaining to the department’s ownership of cell phone tracking equipment known as the stingray. Stingrays, a popular brand name of cell site simulators manufactured by the Harris Corporation, trick cell phones into thinking they are communicating with cell phone company towers, when in fact they are communicating with law enforcement. The powerful surveillance devices allow police to locate phones, identify thousands of people in a crowd, and sometimes even wiretap communications like text messages and phone conversations

Advocates have long suspected that the BPD has maintained a stingray program, as do most major cities, but up until last November had no documentation to prove it. The document BPD finally released to advocate Mike Lacabe-Katz is a non-disclosure agreement (NDA) dated April 2013 and signed by members of the Boston Police, a Massachusetts State Trooper, and the FBI. The agreement forbids police officers from disclosing the existence of the stingray program to anyone outside the department, an arrangement that raises disturbing questions about due process and privacy procedures

In order to understand exactly how Boston police are using their cell site simulator(s), our public information request seeks records including:

  • Policies and guidelines outlining when, where, and how stingrays may be used;
  • Information about what BPD does with the data it collects from stingrays, including data about people inadvertently monitored;
  • Legal memos or other documents describing the BPD’s legal justification for using stingrays, including information about whether they seek warrants before using the devices;
  • Training materials;
  • Intelligence reports that reference stingray use;
  • Police incident reports, criminal complaints, and indictments for the 10 most recently closed or settled court cases or investigations involving stingray surveillance; and
  • The 10 most recent warrant or court order applications to state or federal courts in which the BPD used a stingray to obtain information used in support of the application, as well as the 10 most recent applications for warrants or court orders to use stingrays.

Police shouldn’t be able to hide evidence or the source of evidence from criminal defendants or the public at large—an anti-democratic practice the secretive stingray makes all too easy. And if the Boston Police are like other cities, it’s likely that police are mostly using this invasive tool in routine drug investigations, not primarily for counterterrorism or other inquiries into serious violent crimes.

It’s our hope that the Boston Police Department fulfills its promise to operate in a transparent and democratic manner, and promptly complies with our public records request. Only when the public has access to the facts about current law enforcement practice can we have a meaningful public debate about the limits of state power in the information age. 

Transparency is a necessary prerequisite for meaningful accountability and democratic oversight. Police aren’t the CIA, and in a free society should not be able to operate extremely invasive surveillance programs in the dark. We look forward to having an informed, rigorous debate about the role of these powerful surveillance devices. It’s a conversation that’s come far too late, but it’s better late than never.

© 2018 ACLU of Massachusetts.