State governments taking the ‘sting’ out of surveillance
 

[May 29, 2015]  By Eric Boehm | Watchdog.org
 
 State governments are laying down an example for Congress to follow when it comes to limiting electronic surveillance.

As Congress continues to debate the future of the National Security Agency’s telephone metadata collection program, Washington state has banned the warrant-less use of similar technology that allows law enforcement to track cell phones. Police using so-called “stingrays,” also known as simulated cell towers, now have to get approval from a judge, and they will have to use the devices to seek specific individuals rather than sweeping all calls in a certain area.

“The warrant-less, illegal collection of data, not only by the federal government but by our state agencies; we understand that it violates the constitution,” said state Rep. David Taylor, R-Yakima, who sponsored the bill. “It’s a civil liberties issue, a civil rights issue; I think it’s an issue that’s ripe for everybody.”

The bill got broad bipartisan support as it sailed through the Washington Legislature and was signed earlier this month by Gov. Jay Inslee, a Democrat.

Washington becomes the first state to place such limitations on the use of stingrays. A few states are considering similar bills and one other, Virginia, has already approved one.

Taylor told Watchdog.org he believes the stingray technology can be a useful tool for law enforcement, but without requiring a warrant it was wide open for abuse.

Stingrays work by essentially fooling cell phones into thinking they’re cell towers. The devices, about the size of a small suitcase, can be used to monitor calls and track all phones within a given area.

They’ve been used by the FBI and local police since at least 2008, but their existence has been kept under wraps thanks to non-disclosure agreements between the feds, local cops and the company that manufactures the devices.

Use of stingray devices did not become public knowledge until 2013, when the ACLU successfully exposed the FBI’s use of the surveillance technology with a Freedom of Information Act request.

In Washington, an investigation by the Tacoma News Tribune revealed judges had given police the authority to use stingrays — apparently without realizing exactly what they were doing.

“If they use it wisely and within limits, that’s one thing,” Ronald Culpepper, the presiding judge of Pierce County Superior Court, told the newspaper last year. “I would certainly personally have some concerns about just sweeping up information from non-involved and innocent parties — and to do it with a whole neighborhood? That’s concerning.”

Taylor says the revelation prompted his legislation.

In addition to requiring police to get a warrant from a judge before using a stingray device in an investigation, the new law requires that police disclose to the judge how they intend to use the technology. Police are also required to immediately delete any data collected on individuals that are not a part of the investigation.

Police and law enforcement groups in Washington seem to agree with Taylor. Though they wield considerable power in state governments across the country, law enforcement lobbyists did not attempt to fight the bill’s passage.

The lack of opposition was a surprise to Taylor, who said he expected a lengthy battle.

“Its incumbent upon each and every one of us as individual states to take action and correct the situation,” Taylor told Watchdog.org. “We did it and I hope other states will follow suit.”

But police in other states are putting up a fight.

In California, a similar bill requiring a warrant before cops can use stingrays and other electronic surveillance technology is working its way through the Legislature.

But law enforcement groups say the legislation would hurt their ability to go after child predators.

The bill has been stuck in the committee process since mid-March, but a hearing is scheduled for this week.

In Texas, two bills would place similar restrictions on how and when cell phone interceptor technology could be used by law enforcement.

And Virginia actually beat Washington to the punch. The state Legislature there approved a bill requiring a warrant before stingrays can be used, but even though the bill was signed by Gov. Terry McAuliffe in March, it will not become law until July.

In signing the Washington measure, Inslee used his executive discretion to waive the waiting period and make the new law effective immediately.

The ACLU says at least 50 police agencies in 20 states have been revealed to use the devices, but the exact number is unknown. It has praised legislative and judicial efforts, like the one in Washington, to place limitations on law enforcement’s ability to cast a wide net of electronic surveillance.

“Around the country, local police departments and the FBI have engaged in a campaign to conceal the use of cell site simulators from judges and from the public,” said Jared Friend, who directs the ACLU of Washington State on issues of technology and liberty. “These devices epitomize the continuing militarization of local law enforcement and should not be free from judicial and public scrutiny.”