CA Law Enforcement Using Invasive Surveillance Technology

You can add the Northern CA Bay Area to the growing list of U.S. citizens falling victim to America’s ever-growing — more-likely-than-not illegal — surveillance state. Newly released documents obtained through multiple Freedom of Information Act requests reportedly reveal the widespread use of so-called StringRay devices in California by 9 law enforcement agencies across the Bay area allowing them to gather everyone’s cell phone data in dragnet fashion.

The StingRay device, manufactured by the Harris Corporation, is a troubling tracking device that mimics cell phone towers by tricking wireless tools on the same network and making the tools communicate with the StingRay device, allowing law enforcement agencies to collect data on innocent third parties in a certain radius that are not subject to any investigation. The documents, originally obtained by Sacramento News 10, reveal that the devices are capable of pinpointing targets of investigations with extreme precision, even when they are inside their homes.

Some agencies provided documentation to Sacramento News 10, but none would provide details on how StringRays work or admit to having them, but records show that at least seven Northern CA agencies have the technology and two more have received grants to buy them in 2014. The San Jose Police Department responded to Sacramento News 10’s request with documentation revealing insight into what agencies have the technology and why they want it. San Jose PD requested feedback from other agencies that were already using StingRay when a 2012 grant to the Bay Area Urban Shield initiative (UASI) was approved.

JUSTIFYING DRAGNET SURVEILLANCE AS FIGHTING TERRORISM

Unsurprisingly, terrorism was used as the primary justification for acquiring the StingRay technology in every grant application obtained by Sacramento News 10 because it could allegedly be used to track and disrupt terrorist networks and protect critical infrastructure, but documents obtained also reveal the “mission creep” – an extremely common phenomenon that occurs when one purpose is offered to justify the collection of data on everyone in the surrounding radius that is used for a myriad of other purposes than fighting terror – is prevalent and normal.

The American Civil Liberties Union (ACLU) reported that the StingRay devices, which were reported by the Wall Street Journal as being used by the Federal government in 2011, are highly obtrusive and completely unregulated and once again we are seeing the proliferations of powerful new surveillance tools without any rules on constraints on their use. Making matters worse is the fact that the acquisition of the StingRay devices by local Bay Area law enforcement agencies is shrouded in secrecy and driven by federal grant money, which undermines any local democratic oversight. Despite the fallacious claims that these devices are being used to “fight terrorism,” local law enforcement agencies appear to be using them for ordinary criminal law enforcement.

Some of the devices sold to law enforcement agencies are allegedly not configured to capture all the communications of everyone, but many of them can be used for illegally eavesdropping on everyone in violation of their privacy and there are real questions as to whether or not the devices can ever be used in a constitutional fashion because they are the equivalent of dragnet “general searches” which are prohibited by the Fourth Amendment. Of course there is very little Case Law on the subject that specifically addresses how and under what circumstances StingRays can be used and currently there are no statutes or regulations addressing their use.

DISTURBING TRENDS OF INVASIVE SURVEILLANCE TECHNOLOGIES

Bay area law enforcement agencies that have or will be getting the device include the Alameda County District Attorney’s Office, the Fremont PD, the Los Angeles PD, the Los Angeles Sheriff’s Department, the Oakland PD, the Sacramento Sheriff’s Department, the San Diego PD, the San Francisco PD and the San Jose PD. It appears that the Oakland PD has had the device since 2007, though it’s unknown how they acquired it. The Sacramento Sheriff’s Department has the equipment but declined to provide documentation or comment about it because “the acquisition or use of this technology comes with a strict non-disclosure requirement” and it appears that the manufacturer of the StingRay device is using non-disclosure agreements elsewhere preventing other agencies from providing any public record on that basis.

The ACLU has more on the widespread acquisitions of the invasive surveillance technology and the disturbing trends it causes:

•The Fourth Amendment and transparency. Although we have questions about whether stingrays can ever be used in a constitutional fashion, at a minimum, we need to have clear, transparent rules. While many agencies have been using stingrays for years, there is currently no statutory, regulatory, or constitutional framework governing how they are used. Are law enforcement agencies seeking court authorization before they use the device? If so, what kind of court authorization – statutory orders or probable cause warrants? If they are seeking court authorization, are they providing courts with enough information so that courts can exercise their constitutional role of supervising the search? The constitution requires the police to go to court to get a warrant. But as with too many other surveillance devices, law enforcement is writing its own guidelines.

•Communities take a stand. The process by which these devices are acquired is inconsistent with basic notions of transparency, accountability, and democratic oversight. Agencies are extremely secretive (Sacramento won’t discuss the matter because of a non-disclosure agreement with Harris). We’ve repeatedly seen that when the public actually learns about law enforcement efforts to expand surveillance, local communities stand up and say no. This happened just recently in Oakland, when the City Council, responding to enormous public pressure, substantially scaled back a sprawling spy center called the “Domain Awareness Center.” But when surveillance technology like stingrays are funded by federal grant money, the ordinary budget process is all too often bypassed – thus distorting ordinary democratic processes and short-circuiting public debate.

•Mission creep. Stingrays, like so many other forms of surveillance technology, are susceptible to mission creep. San José’s grant proposal cited fighting terrorism as the intended use of the device. But Oakland appears to have used its stingray(s) for ordinary law enforcement purposes, such as investigating guns, drugs, and gangs. While these are legitimate law enforcement purposes, they don’t justify suspending the Fourth Amendment or bypassing ordinary democratic processes. And if Oakland is already using stingrays to investigate these non-terrorism related crimes, what other purposes will Oakland and other departments use them for in the future?

THE FALLACY OF HAVING NOTHING TO HIDE OR FEAR

Acting insouciant and claiming that you “have nothing to hide or fear” is fallacious, dangerous and misguided. The bull shit espoused by the government about merely conducting anti-terrorism surveillance and non-terrorists not being affected is full of holes. When the government disingenuously conducts illegal surveillance on every American your privacy ceases to exist. Claiming you have nothing to hide also suggests that you are guilty until proven otherwise, and having nothing to hide should not be a license for illegal government surveillance.

But even if you have nothing to hide, you do have something to fear from the government’s illegal surveillance. When you’re subject to the constant gaze of government surveillance it can produce long lasting social harm: If citizens are just a little more fearful, a little less likely to freely associate, a little less likely to dissent – the aggregate chilling effect can close what was once an open society. It can also harm others who fear government retaliation for political reasons.

You also have no idea whether you have nothing to fear or not because you don’t know what the government is doing with all the data it collects illegally. The government keeps that secret for obvious reasons and you can’t defend yourself against bogus allegations or errors, and if you’re familiar with all the illegal actions of the U.S. government since 9/11, you know that errors and fabricated data are quite prominent. When the government keeps everything secret to keep their crimes covered up and avoid accountability, there is no transparency. When there is no transparency, it’s impossible to make sure the government’s actions and information it has illegally obtained about you are accurate.

More explanations debunking the “nothing to hide” can be found here and here, but the issue isn’t about what information you want to hide, it’s about the illegal actions of and structure of the government and what they do with it. We need to know more about what information the government is collecting on millions of innocent Americans, the secret legal interpretations being used to justify illegally gathered information and what exactly the government is doing with that information. As noted by the ACLU, we need those answers because even if we have nothing to hide, it does not mean we want to live in a society where nothing is private.

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