Privacy SOS

After police and corporate secrecy on cell phone sniffers, will Boston cops be forthright with the public?

Photo credit: Ed Schipul

We’ve heard a lot lately about police departments’ use of cell phone sniffers called “Stingrays”. These devices, technically called IMSI catchers, sniff out the identities, metadata, and sometimes even content from cell phones within a given geographic area.

If the FBI or local cops want to know who you’re calling or who is in a building (or, depending on the sophistication of the device, even what you’re saying), they could post up outside in a surveillance van with an IMSI catcher. The device would capture the cell phone identities of everyone walking past them on the street, everyone in the neighborhood, and presumably also the target. The technology doesn’t differentiate between targets and non-targets, swooping up the private information of everyone nearby. For this reason, police might also use an IMSI catcher at a protest, to get a pretty accurate list of everyone who attended. In other words, these devices are really dangerous.

Making matters worse, the government and one of the main companies profiting off the demand for IMSI catchers are working hard to make sure you don't find out if police are using them in your city.

Harris Corporation is the primary manufacturer of IMSI catchers in the United States, and the company that makes the Stingray. As Wired reported, Harris has forced police departments and federal agencies to sign non-disclosure agreements, stipulating that nothing about the technology—even its existence at the agency—can be disclosed to the public without the company’s approval. That’s dubiously legal, especially in states with strong public records laws. Despite Harris’ brutish secrecy tactics, however, information about police departments’ use of its technology has, in fits and spurts, nonetheless reached the public.

Just this week we learned that the Erie County Sheriff’s department in western New York state has been using the advanced surveillance tech since way back in 2008. That’s pretty cutting edge for a county home to just shy of a million people. As has become characteristic with reporting on IMSI devices, the struggle to unearth the truth in Erie County wasn't an easy one.

Local journalists were rebuffed by law enforcement when they first asked for records related to IMSI catchers. In a neat reporter trick, they next asked for the same records from the Erie County Department of Purchasing. That request was ultimately successful. After initially denying the request, just like the police did, the county purchasing department handed over the records, telling the reporters that they’d consulted not just with the local sheriff’s office, but also with the Harris Corporation and the federal Justice Department.

According to the local NBC affiliate that did the reporting, the local District Attorney isn’t pleased about the use of the privacy-invasive tool.

The documents show the first purchases came in late 2008, when the county spent $282,993 on a KingFish system, StingRay system and training classes. In December 2012, a purchase order shows the county spent another $71,300 on a StingRay II Upgrade and a laptop. That brings the overall total to more than $350,000.

Buffalo Attorney Barry Covert called that expense "money wasted", because without a court order, he said any evidence obtained from the devices would not be admissible in court.

"If they are ever utilizing it without a warrant, they're absolutely violating the constitutional rights of everyone whose information they're collecting," Covert said.

One of the biggest concerns is what happens with all the stored data. The Sheriff's Office wouldn't discuss any policies or procedures.

"Any information that makes it onto a computer is now going to be preserved forever," Covert said. "So they can claim that they had the device up and they only wanted to pinpoint one person and get that information, but they're going to absolutely collect information for thousands of people."

The Sheriff's Office also would not say what safeguards are in place to prevent abuse.

That’s troubling.

We here in Boston are about to find out whether or not our police department thinks it, too, can keep records about its use of Stingrays secret from the public. We hope under the leadership of Commissioner Evans the police here will be more forthcoming, and we’ll learn not just whether or not the BPD uses IMSI catchers, but also how it uses them, and with what kinds of privacy protections in place. Today we filed a public records request seeking information about all of that. Check back to see what we uncover.

© 2018 ACLU of Massachusetts.