SurveillancePolice use of Stingray technology raises privacy advocates’ ire

Detective Emmanuel Cabreja, a member of the Baltimore Police Department’s Advanced Technical Team, recently testified that the unit owns and operates a Hailstorm cell site simulator, the latest version of the Stingray — a device which mimics a cellphone tower to force phones within its range to connect (see “Growing scrutiny of police use of Stingray surveillance technology,” HSNW, 20 October 2014).

For years, law enforcement agencies have used Stingrays to find wanted suspects, but until recently, the technology was largely unknown to the public, partly because law enforcement officers were banned from revealing such information to judges and defense attorneys. Privacy advocates now question whether the technology has received proper oversight of its use. They also argue that the use of the device amounts to a search and requires a warrant.

In the court testimony last Wednesday in Baltimore, Cabreja told a judge that his unit has used the Stingray device 4,300 times since 2007. Cabreja himself has used it 600 to 800 times in less than two years as a member of the unit.

“That’s a significant amount of control,” said former U.S. Judge Brian L. Owsley, a law professor at Indiana Tech.

Agencies including the FBI, DHS, and local law enforcement have invoked nondisclosure agreements to keep  Stingray information secret. In a 2014 hearing, a Maryland State Police commander told state lawmakers that “Homeland Security” prevented him from discussing the technology.

Nate Wessler, an attorney with the American Civil Liberties Union (ACLU), said the secrecy is upending the system of checks and balances built into the criminal justice system. “In Baltimore, they’ve been using this since 2007, and it’s only been in the last several months that defense attorneys have learned enough to start asking questions,” he said. “Our entire judicial system and constitution is set up to avoid a ‘just trust us’ system where the use of invasive surveillance gear is secret.”

Last Wednesday’s hearing involved Nicholas West and Myquan Anderson, both charged in October 2013 with armed carjacking, armed robbery, theft, and other violations from an attack on a man in Federal Hill. TheBaltimore Sun reportsthat Cabreja’s unit received information about a stolen cellphone from the October 2013 incident, and detectives obtained a court order to get the phone’s general location using cellphone towers from a cellphone company. Detectives later used  Stingray technology to track the phone to a home. Defense attorney Joshua Insley says Baltimore police obtain court orders under Maryland’s “pen register” statute, which allows police to capture only the numbers that are called or received by a phone, not the metadata and location information  Stingrays collect. “They’re basically duping these judges into signing authorizations to use  Stingrays,” Insley says. Prosecutors counter, saying the language in the court orders authorizes real-time GPS location.

In court, after Cabreja presented a copy of a nondisclosure agreement dated July 2011, Insley asked him: “Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” Cabreja replied “Yes,” and did not comply with a defense subpoena to produce the device in court.

The July 2011 nondisclosure agreement, signed by then-Police Commissioner Frederick H. Bealefeld III and then-State’s Attorney Gregg Bernstein, noted that disclosing the existence of the  Stingray would “reveal sensitive technological capabilities possessed by the law enforcement community and may allow individuals who are the subject of investigation … to avoid detection.” The signatories agree that if they receive an inquiry from judges or legislators regarding  Stingray use, they will notify the FBI immediately to allow “sufficient time for the FBI to intervene.”

Many of the court arguments about Stingray use are cut short when the suspects take a plea deal. Last Wednesday, following Cabreja’s testimony, prosecutors and defense attorneys began to negotiate a plea deal instead of further discussing the  Stingray device. According to Wessler with the ACLU, in cases where the Stingray becomes a sticking point, “defense attorneys are being able to get really good deals for their clients, because the FBI is so insistent on hiding all of these details.”

“There are likely going to be a lot of defense attorneys in Baltimore who may have an opportunity to raise these issues,” Wessler said. “They are on notice now that their clients may have some arguments to make in these cases.”