When we last left Stingrays in January, the FBI insisted that they didn't need a warrant to use them. The devices, which fool a cell phone into connecting with them as though they were a legitimate cell tower, are deployed from public spaces, where there's no reasonable expectation of privacy, the FBI claimed.
Everyone got a good chuckle out of that one, but the degree to which the FBI will go to keep Stingrays secret is no laughing matter, as we learned from new documents released by the New York Civil Liberties Union.
FBI in the Driver's Seat
Rather than go through the long and boring process of getting the phone company's permission -- or a subpoena -- to tap into cell towers, the FBI uses a Stingray, the brand name of a "cell site simulator." The device -- which looks like an old analog cable box -- fools nearby cell phones into thinking the Stingray is a real cell tower. The phones connect to it, and the device promptly records all the data transmitted to and from the cell phones.
As part of the agreement between local law enforcement agencies and Harris Corporation, which makes the Stingray, law enforcement agrees that the FBI will have a tremendous amount of influence over how the Stingray is used. According to such a newly disclosed, unredacted agreement with the Erie County (New York) Sheriff's Office, the FBI must approve use of any information about the Stingray at trial, beyond the evidence collected from the Stingray itself.
And, incredibly, the FBI retains the authority to order the dismissal of any case in which information about the Stingray itself would be disseminated. In summary, says Ars Technica, the FBI would rather prosecutors "drop criminal charges rather than disclose exactly how a [S]tingray is being used."
Box of Lies
It's amazing that we know even this much about Stingrays, given that the FBI has gone to tremendous lengths to prevent anyone from knowing about them. Back in August, when it learned the ACLU would be inspecting Tallahassee Police files relating to the Stingray, the U.S. Marshals Service deputized a police detective to prevent disclosure.
Of course, they could also lie about Stingrays -- which has also happened. The Marshals requested that some Florida police departments claim on warrant affidavits that probable cause came from "a confidential source" rather than from a Stingray device (the latter, of course, being the truth).
Then again, they could just not get warrants at all. NYCLU discovered that the Erie County Sheriff's Department has used Stingrays 47 times since 2010, but obtained a warrant in just one instance -- contradicting the department's claim that they used the devices under "judicial review," reported Wired.
The Stingray also has the potential to sweep up communications that law enforcement isn't targeting, and while they claim they don't do that, we really have no idea -- and neither do state legislatures, which is the way the FBI, the US Marshal's Service, and local police want it.