Local law enforcement agencies across the Bay Area have so-called stingray devices, a powerful cellphone surveillance tool, and more are planning to acquire the technology, according to public records recently obtained by Sacramento News10. The devices are highly intrusive and completely unregulated. Although the Wall Street Journal reported in 2011 that they were being used by the federal government, the News10 records reveal for the first time that these devices are also in widespread use by local authorities stretching from San José to Sacramento. The revelations are troubling. Once again, we see the proliferation of powerful new surveillance tools, but without any rules to constrain their use. The acquisition of these devices is shrouded in secrecy and driven by federal grant money, which undermines local democratic oversight. Their actual use by local law enforcement reflects the all too common phenomenon of mission creep: Although the justification for acquiring these devices is “fighting terrorism,” agencies seem to be using them for ordinary criminal law enforcement.

What’s a stingray and what are the Fourth Amendment implications?

A stingray is a device that mimics a cell tower and thereby tricks all wireless devices on the same network into communicating with it. From a privacy perspective, this is worrying because it collects information about the devices and whereabouts of innocent third parties, not just the target of an investigation. In addition, it can pinpoint targets with extraordinary precision, meaning that individuals can be tracked even when they are inside their homes. Although some of the devices sold in this country are configured not to capture the content of communications, many offered for sale by surveillance vendors can be used for eavesdropping.

There is a real question as to whether stingrays can ever be used in a constitutional fashion. They are the electronic equivalent of dragnet “general searches” prohibited by the Fourth Amendment. But unfortunately, there are currently no statutes or regulations that specifically address how and under what circumstances stingrays can be used, and very little caselaw.

What agencies in Northern California have them?

The News10 records (linked below) show that the following local agencies, primarily in Northern California, already have, or have received grant funding to acquire, stingrays: Alameda County District Attorney’s Office, Fremont Police Department, Los Angeles Police Department, Los Angeles Sheriff’s Department, Oakland Police Department, Sacramento Sheriff’s Department, San Diego Police Department, San Francisco Police Department, San José Police Department. Of particular note:

The Oakland Police Department has had a stingray since at least 2007, when its Criminal Investigation Division’s 2007 Annual Report boasts of 21 “Electronic Surveillance (Stingray) arrest[s]. Reports from 2008 and 2009 boast of 19 stingray arrests in each of those years. The OPD unit that used the stingray, the Criminal Investigation Division, focuses its investigative resources on guns, drugs, and gangs. OPD produced a lone invoice pertaining to the stingray – $13,425 spent in 2009 for “Maintenance Services.” How it acquired the device remains a mystery.

The San José documents are interesting for a few reasons:

Stingrays come with a hefty price tag. The San José Police Department purchased one or more stingrays (the invoices are heavily redacted, so we can’t tell how many units were purchased) in 2013 for $249,837.50, spending another $182,169.09 on training that year. The funds came from the U.S. Department of Homeland Security’s Urban Areas Security Initiative.

It’s hard to know whether San José or any of the other agencies that have purchased stingray devices are getting good value for their money because the contract was “sole source,” in other words, not put out to competitive bidding. The justification for skirting ordinary bidding processes is that Harris Corporation is the only manufacturer of this kind of device. (We are aware of other surveillance vendors that manufacture these devices, though a separate Freedom of Information Request we submitted to the Federal Communications Commission suggests that, as of June 2013, the only company to have obtained an equipment authorization from the FCC for this kind of device is Harris.)

The San José sole source documents identified other “police agencies, in California, that utilize this type of technology. These agencies include San Francisco PD, Oakland PD, Los Angeles PD, San Diego PD, Sacramento Sheriff’s Department and Los Angeles Sheriff’s Department.”

Even though the San José documents make clear that Sacramento has this equipment, Sacramento declined to provide documents or comment about its stingray(s), claiming that because “the acquisition or use of this technology comes with a strict non-disclosure requirement,” “it would be inappropriate for us to comment …” It would be troubling if government agencies could “contract out” of their statutory duties to provide the public with records, but it appears that Harris is using non-disclosure agreements elsewhere, and that other jurisdictions are also refusing to provide public records on this basis. The ACLU of Arizona recently sued the City of Tucson over its refusal to provide stingray documents.

San Francisco purchased a device in 2009 using grant funds, but “staff was unable to locate the request or approval date.” The Alameda County District Attorney’s Office unsuccessfully sought grant funding in 2013. It resubmitted an application in 2014, and this time was joined by the Fremont and Oakland Police Department. According to the agency that administers the funding, that application has now been approved.

What does all this mean?

The widespread acquisition and use of stingrays reflect many of the same disturbing trends we have seen with other new surveillance technologies.

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?

Originally posted on the ACLU of Northern California's blog.