Privacy SOS

Police are using a powerful surveillance tool to fight the war on drugs, not terrorism

Newly released Tacoma Police Department records pull back the curtain of “national security” state secrecy on the use of controversial cell phone sniffers, providing further evidence that powers and tools the government tells us it needs to combat terrorism are—in the vast majority of circumstances—deployed to fight ordinary crime, most of it drug war related. The records also further undermine claims the technology’s main US manufacturer, the Harris Corporation, made to the FCC about how law enforcement uses its product. Troublingly, the documents suggest that the Tacoma Police Department is not following its own procedural manual regarding warrant requirements for cell phone location tracking. Finally, the data reveal that while officials as high up as the Department of Justice are acting like even the existence of cell phone sniffers at police departments is a “national security” secret, the technology was deployed in the first six months of 2014 in the Tacoma area almost exclusively to fight the unpopular war on drugs.

Background on Tacoma police and Stingrays: No warrant required

In September 2014, the Tacoma Police Department provided data on the use of its department’s cell phone sniffing “Stingray” to independent researcher and privacy activist Phil Mocek. The records show Tacoma police first purchased a Stingray from the Harris Corporation in 2007 using funds from the Department of Justice.

Stingrays mimic cell phone towers, enabling anyone with the technology—also called “IMSI catchers”—to identify and track cell phones. Some IMSI catcher models also allow for wiretapping, data traffic monitoring, and even the manipulation of cell phone content. Stingrays are highly controversial because they cannot target just one person for surveillance. One search using a Stingray necessarily implicates the private information of tens, hundreds, or even thousands of people nearby. Since it’s impossible to conduct a targeted search using a Stingray, some civil liberties advocates argue that the devices can never be used in a manner that comports with the Fourth Amendment, even if police obtain warrants.

Recent reporting across the country has revealed that many law enforcement agencies are not even getting warrants to deploy the powerful surveillance tools, however. The documents disclosed to Muckrock suggest that’s the case in Tacoma, as well—even though Tacoma police procedure generally requires warrants for cell phone tracking.

The Tacoma Police Department’s Procedure Manual on “obtaining geo-location data from a Phone Company”, available here, requires officers to obtain warrants when seeking cell phone location information from companies, except in emergencies. But records describing the Tacoma police department’s usage of Stingrays suggest that its officers do not obtain search warrants to use Stingrays. Instead, the data suggest police officers obtain court orders under a ‘relevant and material’ standard. Unlike search warrants, these court orders do not require that police demonstrate probable cause that the target of the surveillance is involved in criminal activity.

So while the Tacoma police rules usually require law enforcement to obtain full search warrants in order to get cell phone location information from providers, police who use the invasive and imprecise Stingray device are in the vast majority of cases likely only getting rubber stamp court orders. It’s unclear whether Tacoma police are informing magistrate judges that they intend to use Stingray devices when they apply for these orders. If Tacoma is like other cities, they probably do not.

Tacoma police get a major surveillance upgrade

In March 2013, the Tacoma Police Department’s Special Investigations division received another federal grant, “to enhance the capabilities of existing equipment to meet current communications protocols.” According to a purchase order dated March 27, 2013, included in the documents released to Mocek, the technology upgrade cost over $250,000. Records from June 2013 indicate that the upgrade included the purchase of a Kingfish device, also manufactured by Harris.

Ars Technica describes the Kingfish:

The Kingfish is a surveillance transceiver that allows authorities to track and mine information from mobile phones over a targeted area. The device does not appear to enable interception of communications; instead, it can covertly gather unique identity codes and show connections between phones and numbers being dialed. It is smaller than the Stingray, black and gray in color, and can be controlled wirelessly by a conventional notebook PC using Bluetooth. You can even conceal it in a discreet-looking briefcase, according to marketing brochures.

In a March 2013 letter to the Tacoma City Board of Contracts and Awards, the police department states that it needs authorization to pursue a sole source contract with Harris Corporation for the purchase of “specialized technical equipment…offer[ing] enhanced technological capabilities for the Tacoma Police Department Explosives Ordinance Detail (EOD) with IED prevention, protection, response, and recovery.” But how was the device used over the following year?

Mission Creep: Warrantless Spying and the War on Drugs

To the Tacoma Police Department’s credit, it turned over specific information to Phil Mocek revealing each time the department or a law enforcement partner used the Harris Corporation cell phone spying equipment between April 2009 and June 2014. Law enforcement used the device 179 times during that period, with an explosion of deployments during the first six months of 2014. While in March 2013 the police department told the city’s Board of Contracts and Awards that it needed to upgrade its Stingray equipment in order to provide “enhanced technological capabilities” to its explosives response team, the department’s use of the technology spiked sharply in the first half of 2014 in cases that overwhelmingly revolved around drugs, not bombs.

In fact, law enforcement in and around Tacoma used the Stingray device to spy on people during drug investigations more times in the first half of 2014 than they did in every type of investigation during each of the previous five years. Police in Tacoma justified the procurement of an extremely invasive and costly surveillance technology by talking about “homeland security” and emergency response to bombings, but most recently have deployed the tool overwhelmingly in routine drug war investigations.

But it’s not just police who are misrepresenting how Stingrays are used in order to gain approval for their deployment. The records also further undermine a claim made by Harris Corporation officials in 2010 communications with the Federal Communications Commission (FCC). Since they interfere with cell phone signals, any sale of Stingrays must be approved by the FCC. In emails to an FCC official in 2010, a Harris employee assured the government regulator that Stingrays would only be used in emergencies. “[T]he purpose is only to provide state/local law enforcement officials with authority to utilize this equipment in emergency situations,” the Harris employee wrote. In Tacoma, like in other cities where Harris products have been sold and used, that’s simply not the case.

Local governments take note: Secrecy protects illegitimate government spying

The Tacoma Police Department’s Stingray records provide yet another window into the trickle down of the national security state to the local level, and demonstrate that transparency in policing serves the interest of democracy. The documents show that what officials at the local and federal level justify for “counterterrorism” and emergency response is actually used to wage the immoral and inhumane war on drugs. The public has a right to know that, and local governments should respond accordingly.

Ordinary people have a role to play, too. If the feds want to give your police department money for surveillance technology, carefully examine the proposals before your city government approves the grant. Publicly ask the police if technologies or powers granted to respond to emergencies can be used in day to day policing. If your city or town agrees that police should be able to use high powered surveillance tools, make sure you first institute clear guidelines about when and how the technology can be deployed. And most important, require that the police automatically disclose records about how they have used surveillance technologies, on at least a semi-annual basis.

Transparency comes before accountability. Local government should require that these records are made public as a matter of course, so that the citizenry can judge police behavior and act accordingly. If police say they need X new power or technology in order to combat terrorism, but then end up using it to go after drug dealers, maybe they don’t need the technology after all. Only an informed city government and public can rein in out of control local surveillance programs that drain precious funds and violate personal privacy.

The FBI is afraid of this kind of transparency, and is trying to prevent local governments from being frank with the public about how they use controversial surveillance equipment like Stingrays. But the Tacoma Police Department puts the lie to those hysterical claims about national security. Its data on Stingray deployments was published for the world to see, and the people of Tacoma are doing just fine.

Government transparency might make it more difficult for agencies to pretend they are using potentially unconstitutional powers and technologies to heroically stop terrorists when they are really just ramping up the war on drugs. And that’s a good thing.

© 2018 ACLU of Massachusetts.