Warrantless use of a little known, and controversial technology the San Francisco Police Department uses to track cell phones via GPS — and possibly intercept voice, SMS, and data transmissions — was ruled a likely Fourth Amendment violation by the United States Court of Appeals for the Eleventh Circuit this week.
If such technology was used by the SFPD in the course of an investigation or submitted as evidence in a criminal trial, the decision may present defendants in criminal cases with a greater chance of suppressing such evidence, and result in overturned criminal convictions of past cases.
The technology itself is shrouded in secrecy. It’s known by a number of names including Trigger Fish, International Mobile Subscriber Identity (IMSI) catchers, and Stingrays — a product name for a device manufactured by Florida based Harris Corporation which produces a range of tactical communications, defense and intelligence information technology.
Harris spokesman Jim Burke declined to comment on the specifics of the technology, but told the Appeal that “Two of our major markets are defense and law enforcement, and for those markets we can’t discuss our products. It’s very heavily restricted, and regulated. We abide by all laws and regulations.”
The SFPD obtained a Harris made Stingray in 2009 via a Department of Homeland Security grant, along with seven other law enforcement agencies in Northern California, according to a News 10 report which first revealed the Stingray’s deployment in the region.
The Stingray devices are a type of International Mobile Subscriber Identity (IMSI) catcher that pretends to be a cellular tower, tricking devices into connecting to it — then performing what’s known as a “man-in-the-middle attack” on the device.
Once that’s done, law enforcement can pinpoint a person’s location, as well as the unique identification and telephone number, as well as phone numbers dialed out and SMS messages.
Such technology is also able to intercept voice, and data communications but when Stingrays are sold to law enforcement agencies, that feature is disabled.
When the Appeal made a written request to SFPD discuss policies and procedures for use of such devices, SFPD spokeswoman Sergeant Danielle Newman refused to confirm or deny the existence of Stingray and related documents.
By way of reasoning, Newman invoked several state law statutes, sections of the US Code, and Executive Order 13637, that President Barack Obama signed last year.
Newman’s refusal to discuss the SFPD’s use of the controversial devices is a boilerplate response, according to ACLU Attorney Linda Lye, one that multiple jurisdictions across the country are using when asked to produce documents relating to the Stingrays.
“It’s a ridiculous argument. Local governments are refusing to disclose records; invoking the same arguments. The Executive order pertains to a list of munitions that are subject to regulation, not the Stingray. It’s bizarre.”
Lye went on to speculate that the SFPD and others are being coached by the FBI and perhaps the Harris Corporation on how to respond to document requests. Other law enforcement agencies also claim they have signed non-disclosure agreements that prevent them from discussing the technology altogether.
In addition, a recent Associated Press report uncovered evidence that the Obama administration has been actively suppressing Stingray related documents from public records requests and criminal cases where they are used.
Despite the fact that the SFPD refuses to discuss their use of the devices, other departments in the Bay Area make use of Stingrays to, at the very least, make arrests.
The department has since stopped publishing Stingray arrest numbers for unknown reasons.
Reached by telephone Tuesday, San Francisco Public Defender Jeff Adachi said that he has not heard of any local cases which involve the use of the Stingray, at least not that his office is aware of. However, he cautioned that often law enforcement does not keep records of how Stingrays are used, so “They’re basically unregulated at this point.”
Agreeing with the Eleventh Circuit Court’s decision, Adachi called the devices a “clear Fourth Amendment violation” and said that the SFPD has an obligation to the public to discuss and disclose the use of this technology in any given case where it was used, “regardless of whether or not it resulted in obtaining information.”
In an opinion written by Judge David Sentelle (you can read the entire ruling here), the Eleventh Circuit Court ruled that “In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.”
It’s a victory for privacy advocates, but not a total one. “The 11th Circuit decision also creates a circuit split with the 5th Circuit which means we may get the Supreme Court to take up the issue,” said Electronic Frontier Foundation staff attorney Hanni Fakhoury, referring to a judicial decision last year that indicates warrants are not needed to track people via their cell phones.
That said, Adachi still appears pleased with the ruling, saying that “You don’t sign away your constitutional rights when you sign your cell phone contract. Police will now have to show probable cause to a judge, which is reasonable.”