Technologist - The FindLaw Legal Technology Blog

San Bernardino Sheriff Used Stingray 300 Times: Ars Technica

The Stingray, you'll recall from our many stories about it, is one of our favorite bits of nefarious surveillance technology. Many of the details about the device are kept secret, but we do know that it tricks nearby cell phones into thinking it's a cell tower, and when the phones connect to it, the Stingray intercepts all the data the phone sends.

Ars Technica reported earlier this week on another wrinkle in the ongoing saga of the Stingray: A law enforcement agency in California has used it over 300 times in the last year, thanks to questionable warrant applications.

More Than a Little Misleading

Law enforcement agencies have either argued that they don't need a warrant to use a Stingray (because it's being deployed in public) or just lied about using a Stingray and instead attributed the information they collected with it to a "confidential informant."

The San Bernardino County Sheriff's Department is trying the latter method, but with a twist, according to Ars Technica. Through documents obtained via public records requests, Ars learned that the SBCSD is submitting warrant applications to judges claiming that it's going to use a "pen register" or "trap and trace" device, when in fact, it intends to deploy, and has deployed in this manner over 300 times, a Stingray. "The template is likely to mislead judges who receive applications based on it because it gives no indication that the Sheriff's Department intends to use a stingray," an ACLU attorney told Ars.

The difference isn't just academic. Pen registers and trap-and-trace devices record only the phone numbers dialed and received by a phone. The Stingray can do this, but it can also do much more. It's capable of recording the actual data transmitted by the phone, to include voice and text communications, and any data transmitted by phone applications that use cellular data to connect to the Internet. A former federal magistrate judge told Ars that the warrant application is "problematic" and "should actually state 'Application for a Cell Site Simulator' or something along that lines."

Sunlight Is the Best Disinfectant

Stingray proponents will claim that they're not using this feature of the Stingray, but of course, the reason we have judges to review warrant applications is because the Constitution doesn't allow us to take it on law enforcement's honor when they claim something is true.

We have no way of knowing what law enforcement are collecting, thanks to extensive non-disclosure agreements between local agencies and Harris Corporation -- and the FBI, which is always a party to these contracts. Whenever the Stingray's capabilities might become an issue in the underlying criminal case, local prosecutors are directed (by the FBI) to drop the charges rather than risk discussing the Stingray in a public setting.

Several states are getting wise to the Stingray, and the state of Washington now requires police not only to specifically disclose when a Stingray is used in a warrant application, but to explain to judges what the heck it does.

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