Tenth Amendment Center: Passing Laws Isn’t Enough; Communities Must Push for Compliance
LOS ANGELES, Calif. (Aug. 31, 2017) – A recent Los Angeles Times review of documents relating to the use stingray devices submitted by California law enforcement agencies underscores that simply passing laws isn’t enough. Ensuring government agencies comply with legal requirements takes constant vigilance, pressure and activism.
Cell site simulators, commonly known as “stingrays,” spoof cell phone towers. Any device within range is essentially tricked into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
In 2015, Gov. Jerry Brown signed legislation into law that prohibits a local agency from acquiring or using a stingray device unless “approved by a resolution or ordinance adopted by its legislative body at a regularly scheduled public meeting where the public has a reasonable opportunity to comment.” SB741 also requires the resolution or ordinance to set forth policies on stingray use based on specific guidelines outlined in the legislation. The guidelines include a requirement to “maintain a usage and privacy policy in order to ensure that the collection, use, maintenance, sharing, and dissemination of information and data gathered through the use of cellular communications interception technology is consistent with respect for an individual’s privacy and civil liberties.”
The Times reviewed records from 20 of California’s largest law enforcement agencies and found compliance with the law was less than stellar. The paper found “some agencies have been slow to follow or have ignored the law. Several that partner with federal agencies to work on cases are not subject to the law’s reporting requirements. The result is that little information on Stingray use is available to the public, making it hard to determine how wide a net the surveillance tools cast and what kind of data they gather.”
Nevertheless, the Times did obtain and review more than 400 documents from public information requests, including grant proposals, purchase orders and memos on the use of cell site simulators. Much of this information would have been unavailable were it not for the passage of SB741. But the paper noted most of the records on purchases and grant proposals it reviewed were highly redacted, and didn’t provide much insight into how their equipment is designed and what it can collect.
Even getting law enforcement agencies to acknowledge they operate cell site simulators represents a step forward. The FBI often requires agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement. As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
Laws like SB741 take a first step toward creating an environment of transparency surrounding stingray surveillance. But a law alone isn’t enough.
There seems to be a strong correlation between community activism and compliance with the law. For instance, the Oakland Police Department went above and beyond the requirements of the law and gathered input from the public to develop guidelines for its stingray use. The Bay area has a very strong community of activists engaged in protecting privacy rights. The Times noted that areas with strong activist communities tend to have better law enforcement compliance and maintained stricter regulations on the use of stingrays.
“The state law helped open up some public access to information about how and where the devices are used. Privacy advocates and lawyers have kept up the public pressure in some cities and counties, particularly in the Bay Area, calling on officials to put ordinances and guidelines in place to bar police from collecting data from those not under investigation.”
The Times report tells us the “law is not working.” But in reading the report, the failure doesn’t seem to be with the law, but a failure in some communities to follow through, and hold their police departments accountable and ensure they follow the law. When activists keep public pressure on law enforcement agencies, and keep the community engaged in surveillance issues, law enforcement agencies tend to comply with requirements. But when left on their own, police will simply ignore the law or take half-measures. Laws provide tools activists can use to force the issue. But ultimately, it always comes down to concerned local residents willing to take action and apply pressure. Laws are a tool, not a solution.
A bill that would effectively expand the stingray law to all surveillance technologies is currently moving through the California legislature. Sen. Jerry Hill (D-San Mateo) and Sen. Steven Bradford (D-Inglewood) introduced Senate Bill 21 (SB21) earlier this year. The legislation would require law enforcement agencies to propose a Surveillance Use Policy for each type of surveillance technology it operates and the information collected. It would then have to submit the policy to its governing body for approval at a regularly scheduled hearing, open to the public. If the plan is not adopted, the law enforcement agency would be required to cease using the surveillance technology within 30 days. The proposed law would require law enforcement agencies to amend their use policies for any new surveillance technology they acquire in the future, subject to the same approval requirements. It also includes detailed reporting requirements.
Passage of SB21 would take another step forward for privacy in California, but it will also require a vigilant community to back it up.
Mike Maharrey
August 31, 2017 at 10:59AM
