Sometime between April and June 2013, the Boston Police Department obtained FBI authorization to use controversial cell phone trackers known as stingrays, according to a newly public non-disclosure agreement obtained by privacy activist Mike Katz-Lacabe.
The document reveals that the Boston Police Department, like other police agencies throughout the country, is under strict FBI orders to keep evidence of stingray use secret from criminal defendants, attorneys, judges, and other members of the public. If the police fear that their use of the controversial and secretive surveillance tool may be disclosed in court, the NDA warns, the police must either drop the case or figure out a way to keep the stingray evidence from emerging. The FBI’s requirements raise questions about the Boston Police Department’s ability to use the stingray device during criminal investigations without compromising due process rights, and suggest that police may be using “parallel construction” to launder stringray-derived evidence.
Dated April 5, 2013 (ten days before the Boston marathon bombings) and signed June 26, 2013, the NDA bears the signatures of former Boston Police Commissioner Ed Davis, eleven Boston Police officers, and one Massachusetts State Trooper. After the bombings, Davis retired. Also retired is fellow FBI stingray NDA-signatory Lieutenant Detective Robert P. Harrington. (Harrington earned a whopping $213,347 in 2014, his final year on the force. Documents obtained by Shawn Musgrave show that he is currently listed as a “special state police officer” by the Massachusetts State Police.)
Open source research reveals that all but one of the other cops who signed the stingray NDA work on drug war cases. (The other officer, Frederick Waggett, has worked on anti-gang units including the Youth Violence Strike Force.) One of the officers, Paul W. Murphy, was as of 2008 the head of the Drug Control Unit for the Boston Police Department’s C-6 division, which covers South Boston and parts of Dorchester. Murphy was the officer who, without a warrant, examined alleged Dorchester drug dealer Brima Wurie’s cell phone incident to arrest, prompting a constitutional challenge. Wurie fought the warrantless search all the way to the Supreme Court, which in 2015 held that the search was unconstitutional, creating new law requiring police to obtain a warrant before searching cell phones incident to arrest.
In 2010, the majority of the police officials who signed the BPD/FBI NDA for stingray use took part in a joint federal-local drug sting they called OPERATION MAGIC WAND. During the operation, the Drug Enforcement Administration worked with the Boston Police Department’s Special Investigations Unit (SIU) to target an alleged cocaine ring in Dorchester. Police officers Chris Boyle, Robert Harrington, Martin O’Malley, Greg Brown, Marvin Wright, Ismael Henriquez, Steven Rioux, Joao Monteiro, Adolfo Brito, and Martin Conley (of the State Police) received commendations for their roles in that drug operation; they are also signatories of the stingray non-disclosure agreement.
The revelation that most of the detectives who signed the stingray NDA work on drug cases strongly suggests that the “mission creep” trend evident in other areas of policing tars Boston’s stingray program, too. Police departments frequently seek federal funds to purchase expensive devices like stingrays by claiming that they need the fancy technology to stop terrorists. But since terrorism is extremely rare to nonexistent in most American cities, the technology is most often used in routine drug cases, as figures disclosed by the Tacoma Police Department demonstrate.
The drug-terror war mission creep threatens civil liberties because it means that extraordinary powers granted to police to combat rare instances of extreme violence are being deployed in our city on a regular basis—not to stop terrorists but to lock up our community members for drug offenses. A technology or power justified on the basis of dealing with the outlier situation gradually becomes routine—and with it, the poisonous secrecy and due process violations made necessary by agreements like the FBI’s non-disclosure document.
It’s long past time to upend that secrecy regime. Police are not the CIA, and they shouldn’t be able to withhold from the public basic information about how they conduct investigations that land people behind bars.
Nevertheless, the Boston Police Department has refused interviews about its use of stingrays in the wake of its release of the FBI NDA. That’s too bad, because there’s a lot more to learn about how the Boston Police have been using their fancy spy tool since they got FBI approval to buy one in 2013. Among those questions:
Which officials are approved to use the stingray, and for what purposes? Does BPD activate the pen register and wiretap capabilities, or just use stingrays to track and monitor the locations of individual people through their phones? What kind of training and oversight mechanisms are in place pertaining to stingray use? Who at BPD has to approve the use of the technology? What legal justification does the department use to deploy stingray, and does it get warrants or just pen register orders? Does BPD follow the FBI’s instructions and keep secret the fact that it used stingrays, even when those deployments helped the cops arrest and lock people up? What is their internal policy for creating alternate evidence chains, if they do use stingrays but refuse to disclose their use to defendants and courts? When BPD uses stingrays, does it retain information collected on people who weren’t surveillance targets but just so happened to have the misfortune of standing near the person targeted? Does BPD tell judges it intends to use stingrays when it applies for court orders or warrants to conduct surveillance? And finally, what kinds of investigations does BPD use stingrays for? Who is targeted in these operations?
The only document we have at our fingertips right now is the non-disclosure agreement. It reads almost exactly like those that have been disclosed by other police departments. But the long list of signatories at the end of it, when viewed in the context of open source research revealing the roles of those men, suggests an answer to the last question. If these names are any indication, Boston is like Tacoma, where stingrays are deployed most often in routine drug investigations.
Public defenders and criminal defense attorneys working on drug cases will likely be interested to know that.
Stay tuned for more information about the Boston Police Department’s stingray program. The disclosure of the BPD/FBI NDA is just the beginning of much needed transparency efforts. Only when we learn answers to the questions above will we be able to have the fully-informed public debate we so desperately need about invasive technologies like stingrays, to ensure that police aren’t using them in a manner that violates the civil rights and civil liberties of Bostonians.