Privacy SOS

James Comey says the FBI can’t let police talk about widely reported surveillance tech because of ‘bad people’

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I hope you're hungry, because here's a whopper: The FBI director has publicly defended his organization's use of non-disclosure agreements to prevent local police departments from releasing documents about their use of controversial surveillance technologies, despite the fact that these technologies have been widely discussed in media outlets for years. What's his justification for this policy? Bad people.

The surveillance technology in question is the stingray, also known as a cell site simulator or IMSI catcher. The device allows law enforcement (or criminals or anyone else who possesses one) to get around the tiresome exercise of issuing legal orders to telephone companies to track the precise physical locations of cell phones. Instead of going to AT&T with a court order or a warrant to conduct real-time cell phone location tracking, the feds and local cops can use stingrays to track phones all on their own. The devices trick cell phones into thinking they are cell phone towers, so phones within range of them will send information to the cops instead of to your cell phone company. Pretty tricky. Also, as a cursory Google search reveals, pretty widely known!

That's why it's so strange to find that police departments are still telling journalists and other interested members of the public that they cannot disclose any information about their use of cell site simulators. And it's why it's doubly strange to hear the FBI director defend his agency's practice of forcing police departments into signing non-disclosure agreements that supposedly prevent them from acknowledging even the existence of a stingray to the public or the press.

Comey's rambling justification of this antidemocratic practice is unsurprisingly outrageous. Somewhat surprisingly, it's also entirely misleading.

Here's what he says:

We’re talking about using a device to find the location of a particular individual, and where they might be using their cell phone. It’s not about intercepting their calls, their communications, ok. We can’t listen to the content of their calls without a court order. It may be about finding what cell tower someone’s phone is pinging off of. And with appropriate authority, we the feds, and our local brothers and sisters have to be able to do that to investigate all kinds of things. It’s how we find killers. It’s how we find kidnappers. It’s how we find drug dealers. It’s how we find missing children. It’s how we find pedophiles. So it’s work that you want us to be able to do. Again, appropriately, with appropriate authority overseeing it.

But to me it’s not about—I don’t mean to accuse you of asking a trick question but you used the term ‘bulk collection’? That means something very different to me. And also ‘collection’ to me means something very different, right. This is not about the content of people’s communications, or collecting every number that they dial, right, to me it’s about, we are using some equipment, appropriately in my view, to find bad guys. I don’t want to say too much about that, because I don’t want the bad guys to know, right, how we might be able to find them.

It’s one of the reasons that we ask local authorities who are working with us and using our equipment not to talk about it. It’s not cuz they’ve got something to hide from good people, I got a lot to hide from bad people. So that’s how I think about it.

Wow! This is a stunning series of statements, not least because the FBI director apparently doesn't understand how stingrays work.

Comey says stingrays are used to find out which cell tower someone's phone might be near. But in fact stingrays are used in precisely the opposite way: to find out exactly where someone's phone is at a given moment within a cell tower's range, which in a rural area can be quite large. We've learned from the little that's leaked out into the public domain that law enforcement sometimes issues demands to cell phone companies to find out which tower a phone is near, and then drives to that area with a stingray to precisely locate the person they are targeting. It's strange that the FBI director lacks this basic understanding of how a technology he seems to think is vital to the FBI's operations works.

But that's not all Comey misunderstands about stingray technology. He also says that IMSI catchers cannot wiretap conversations, which is totally false! IMSI catchers can wiretap both conversations and data. But when the FBI director makes this error he slips up and reveals more than he might think. By saying that the FBI obtains court orders to wiretap people, in the context of a denial that the FBI uses stingrays to conduct wiretaps, Comey seems to be saying that the FBI does not obtain warrants to use cell site simulators to track cell phones. That's not entirely surprising, as FBI documents that have been in the public domain for a few years now suggest the same thing.

On the question of how the FBI and its "local brothers and sisters" use stingrays, Comey is much more honest than local police and corporate officials have been when discussing cell site simulator deployments. In Tacoma, for example, the police told the city they needed a stingray to conduct terrorism investigations—but then used it overwhelmingly in drug cases. The Harris Corporation, one of the major manufacturers of IMSI catchers and the company that sells the brand name stingray, told the FCC that "the purpose is only to provide state/local law enforcement officials with authority to utilize this equipment in emergency situations." Comey admits that the FBI and cops use the technology to catch drug dealers, whom he calls "bad people." Points for honesty there; he didn't even mention terrorism or emergencies.

But the descent into simplistic morality plays about who is 'good' and who is 'bad' leads the FBI director to some seriously troubling conclusions. It's these unnamed "bad people" who force the FBI and police departments to keep mum on their use of the technology, Comey says. He doesn't mind if "good people" know about the government's surveillance technologies; he just doesn't want the "bad people" to find out! This argument is absurd on its face, because anyone who can read a newspaper or the internet can easily learn that major city police departments and the FBI use cell phone tracking equipment. Certainly anyone who has ever seen a 21st century cop show knows that police track cell phones, both content and location.

Sadly, Comey's invocation of good and evil is worse than nonsensical, because of what this rhetorical invocation of good and evil performs. Without saying the word 'terrorism', Comey has invoked the state secrets privilege as applicable to surveillance technologies used in routine criminal investigations. That's a novel argument about public disclosure of police practices. Novel as in garbage. Garbage as in totalitarian.

Despite its patently obvious illogic, this dangerous position still holds sway throughout most of the country, where journalists and groups like the ACLU are filing requests and suing to obtain information about police department stingray deployments. Here in Boston, for example, the police just last week told privacy advocate Mike Katz-Lacabe it couldn't talk about stingrays.

Perhaps the lullaby James Comey tells himself about protecting the 'good people' from the 'bad people' by subverting democratic norms and imposing NSA-style secrecy on routine criminal surveillance makes him feel good. But it should serve as a wake up call to the rest of us. Our local police are not national security officials whose routine investigatory tactics should be hidden under the ever-growing cloak of state secrecy—no matter how many supposedly bad people exist in the world.

© 2021 ACLU of Massachusetts.