Under the pretext of protecting citizens against terrorism, numerous law enforcement agencies in California are secretly employing high-tech methods to collect the personal data of cellphone users. Not only can they access the cellphone data, they can also pinpoint the exact locations of cellphone consumers. These covert surveillance tactics involve a wide search net rather than the specific targeting of a suspect and would seem to be in direct conflict with the Fourth Amendment, which prohibits unreasonable searches without a warrant or probable cause.
Thanks to funding grants from the Department of Homeland Security (DHS) law enforcement agencies have the resources to purchase high-tech equipment like the “StingRay” which is a device that covertly mimics a cellphone tower and captures cell signals within a specific radius. The technology is usually located inside police surveillance vehicles and can “trick” cellphones into communicating with it. Because every cellphone is programmed to seek the nearest cell tower, all wireless devices within a certain range can be tricked into that communication without the user’s knowledge. Under the auspices of the Urban Areas Security Initiative (UASI) local law enforcement may be using the device to prevent acts of terrorism but they are also using it to target, apprehend and prosecute everyday citizens who may or may not at the time of surveillance be suspects in a crime.
In Oakland, California alone, the city’s Targeted Task Force II used the Stingray technology to arrest 23 criminals in 2007, 19 in 2008 and another 19 in 2009. Although the apprehension of criminals, from thieves to murderers is the practical goal of law enforcement, not one of those arrests were terrorism related. The secret surveillance that led to these arrests may have infringed on the constitutional rights of those criminals who were caught in a wide StingRay net.
Law enforcement in several other California cities are already using secret cellphone data collection or have requested feedback about it for future use. In San Jose, a grant application by law enforcement to receive funding for the StingRay technology includes requests for feedback on its applications from the cities of San Francisco, San Jose, Sacramento, Los Angeles and San Diego. To avoid publicly disclosing whether or not the technology is in use, law enforcement purports that there is an exacting “non-disclosure requirement” that makes it “inappropriate” to comment on whether or not an agency is currently using or intends to use the spy technology.
The Fourth Amendment is supposed to protect citizens against unreasonable searches and yet, the StingRay can locate users inside their personal dwellings where they have the expectation of privacy. This allows law enforcement to determine who is inside a home at any given time provided the person has a cellphone. The technology can also detect the unique identification number of the phone, the numbers called out from the phone and the personal information stored in the cellphone’s database. The StingRay also collects text messages but in most cases, is not equipped to record voice calls.
Linda Lye from the American Civil Liberties Union (ACLU) of Northern California has issued a challenge to the federal government to come clean about the use of technology like the StingRay to secretly spy on Americans. She claims that many local law enforcement agencies are using the technology but that “public” and “criminal” defendants do not have any idea that this is happening nor what guidelines govern the agencies operations. Lye also is concerned about what she calls “mission creep” which she says is a “common phenomenon with surveillance technology.” In other words, technology that is slated for a specific data collection purpose may eventually be used for other purposes for which it was not originally intended.
The use of secret data collection technology by California law enforcement may have applications as an anti-terrorism tool. However, the cellphones of private citizens who are not suspects in any crime would seem to be protected by the Fourth Amendment. The state’s use of this technology is in line with the National Security Administration’s (NSA) federal policy that also seems to be infected with “mission creep” and has been much debated in terms of its constitutionality. At this time, it does not appear that law enforcement on the state level will come forward and acknowledge the use of devices like the StingRay, nor disclose how its use is governed and who is being targeted. Until then, it is safe to assume that cellphone consumers are subject to secret surveillance and that reasonable expectations of privacy no longer apply.
By Alana Marie Burke
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The Desert Sun