According to documents disclosed to the ACLU, the Boston Police Department has never obtained a warrant to use controversial and highly invasive stingray cell phone tracking technology. The department claims that each time BPD officers used a stingray, it was in an emergency situation and therefore officers could bypass judicial oversight. But the sparse records disclosed do not provide enough detail to confirm these claims.
The Boston Police Department’s response to our records request continues a troubling pattern of secrecy surrounding its use of this powerful surveillance tool. The department provided no training documents or internal policies or procedures specific to stingray use. The documents disclosed do not reveal whether criminal defendants were notified that police used a stingray to locate them. Without more information, it’s impossible for the public, criminal defendants, courts, or legislators to be sure that police are using this powerful technology without violating constitutional rights.
Exactly how exigent are these ‘exigent circumstances’? We don’t know.
In a March 2016 letter to the ACLU, BPD attorney Taub wrote that the department “only utilizes Cell Site Simulators subject to a search warrant or where exigent circumstances exist that require immediate law enforcement action.” Despite this claim, the department has never gotten a search warrant to use a stingray, according to Taub. “Since approximately 2014, the Department has deployed its cell site simulator equipment on nineteen (19) occasions,” Taub wrote—nine times within the department, and ten times on loan to other agencies. “On each of these occasions, the equipment was used solely to narrow down the location of the suspect and/or person in danger” [emphasis mine].
Under the exigent circumstances doctrine, law enforcement may conduct Fourth Amendment searches without warrants in a “narrow category” of cases, where one of two conditions must be met. Either law enforcement is acting in an emergency situation to “preserve life or avoid serious injury,” or police have probable cause to believe they must act immediately to prevent evidence from being destroyed.
According to the BPD, its stingray has been deployed in the following cases since 2014:
- Three times to locate a missing person;
- Twice to “assist human trafficking with child in danger” [sic];
- Once to locate a fugitive;
- Nine times to “assist outside agencies with drug investigations;”
- Once in a firearm possession case;
- Twice in commercial robbery investigations; and
- Once in a homicide investigation.
It’s certainly plausible that in some of the nine cases in which BPD used a stingray in its own investigations, exigent circumstances truly did exist. But the department did not provide sufficient information to prove its claim that the exemption applied in any one case. The police provided no records to describe six of the nine cases; in the others, officials only disclosed three sparse incident reports, none of which mention the use of the stingray or describe why it was necessary to use the device without a warrant.
Of those three cases, one appears to be a search for a “fugitive” sought on an outstanding drug warrant; one involves a homicide investigation; and the third describes an arrest for possession of a weapon. The heavily redacted documents reveal very little about the investigations and, on their own, don’t show why Boston Police couldn’t get a warrant to use the stingray. (One revelation: In the firearm case, the arresting officer and his supervisor were both members of the Youth Violence Strike Force, a controversial and hard-hitting group of officers who patrol in plain clothes and use aggressive tactics largely against young men of color.)
Secrecy protects illegality. Transparency produces accountability.
The BPD’s response to our public records request leaves unanswered many questions about the BPD’s stingray program. For example, the department did not provide the ACLU with training documentation outlining how its officers are instructed to use the controversial equipment. Likewise, despite the existence of policy documents outlining BPD stingray procedure, the department claimed these records were exempt from the Massachusetts public records law. According to Attorney Taub, “disclosure of the information contained in the guidelines for [stingray] use would not be in the public interest and would prejudice the possibility of effective law enforcement.”
“More specifically,” Taub wrote, “disclosing the specific circumstances in which this equipment can be utilized, as well as the process in place for doing so, would reveal sensitive technological and investigative capabilities possessed by the Department. Such disclosure may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement.”
The BPD’s excuse for why it needs to keep such a tight lid on its stingray program doesn’t pass the laugh test. Are we to believe that people engaged in serious criminal activity in the year 2016 are unaware of the fact that law enforcement can track their movements through their cell phones? Anyone who has ever watched a cop show in the past five years knows the police can turn our phones into tracking devices, and law enforcement’s use of stingrays specifically has been major news in Boston as well as other cities nationwide.
No, the BPD’s stated reasoning for why it can’t disclose more information about how and under what circumstances it uses cell site simulators doesn’t make sense. But there’s another, much more plausible explanation for the troubling secrecy surrounding the BPD’s stingray surveillance regime. Namely, keeping information about the technology secret allows the police to shield its use of the device from constitutional litigation. By keeping information about stingrays out of courtrooms, the police ensure they can continue to use the technology without any external oversight or accountability. That’s most likely why the FBI has forced police departments nationwide to sign non-disclosure agreements before purchasing stingrays, requiring them to notify the FBI before giving the public, criminal defendants, or courts any information about the technology.
We know what happens when courts and the public learn more about law enforcement stingray deployments. In Washington state, disclosures about stingrays led courts to order law enforcement to disclose to judges and defendants when the devices were used during investigations. Ultimately their state legislature passed a law requiring warrants for stingray use. Just this week, after high-profile stingray litigation and months of publicity about the issue, Illinois passed a similar statute. And when a New York federal judge was confronted with a constitutional challenge to a warrantless stingray search, he ordered that law enforcement must obtain probable cause warrants before using the devices.
In short, transparency leads to accountability. Unfortunately, that’s precisely what the Boston Police Department is avoiding by refusing to level with the public about how and why it secretly tracks our phones. Secrecy like that is unbecoming of a democratic society, and threatens core constitutional rights to privacy and due process. The Boston Police Department should provide the public and criminal defendants with much more detailed information about its use of this highly invasive tracking technology. Contrary to the police department’s claims, there’s nothing to fear in transparency but democratic accountability.