The intricate surveillance equipment used by the federal government to track and store the cellphone data of millions of people and to monitor terrorism suspects is making its way to Main Street.
Police departments across the nation have been trying to conceal their use of cellphone tracking equipment from local courts because of nondisclosure agreements that allow the departments to use the devices on loan - as long as they promise the manufacturer they will keep it a secret.
The devices, manufactured by the Florida-based Harris Corporation, are commonly used at the federal level, but are also proliferating across local and state police departments. The technology has been purchased under various names, including StingRay, HailStorm, Harpoon, AmberJack, KingFish and RayFish, and mimics a cellphone tower.
When cellphones connect to the device, it can record the phone’s unique information and traffic data, as well as its location. The devices can triangulate the position of a particular cellphone in relation to its antenna and other towers in the area with greater accuracy than would be possible from a network provider’s permanent tower location.
The devices are used to gather information about both specific individuals and large groups (including people involved in political dissent). They also sweep up the cellphone records of thousands of users who happen to be in the devices’ radius and who are not suspected of any wrongdoing. For those who are suspected of wrongdoing, the potential indiscriminate use of the devices is likely harming their due process rights, according to Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union (ACLU).
However, the exact targets of the devices are rarely revealed, thanks to the terms of the agreement between the cops and the companies. Police departments in Florida and Arizona have signed nondisclosure agreements with Harris Corporation to purchase the equipment on loan from the company and say that these agreements bar them from revealing information about the devices’ use - even to judges. In one case in Tallahassee, officers opted not to seek a warrant for a suspect they had tracked to his girlfriend’s apartment to specifically avoid having to tell a judge they used a StingRay device to find him there.
The language of the nondisclosure agreement signed by a police department in Tucson, Arizona, is more broad than necessary to protect legitimate trade secrets, according to civil liberties experts. According to the contract, which was obtained by an Arizona journalist, the city is not to "discuss, publish, release or disclose any information pertaining to the Products covered under this NDA to any third party individual, corporation, or other entity, including any affiliated State, County, City, Town or Village, or other governmental agency or entity without the prior written consent of Harris."
"It’s like [the Harris Corporation is] not even trying to pretend that they are protecting trade secrets," said Wessler with the ACLU, who was involved in the Tallahassee case. He said nondisclosure agreements can protect legitimate secrets, including technical details or other information that could give corporate competitors an economic advantage, but that the language of the Tucson agreement is much broader than necessary. He told Truthout that state and local police departments sometimes obtain similar technology from the FBI, and in those cases, departments have signed similar agreements with the FBI.
"[The Harris Corporation] seems to be trying to prevent [police departments] from talking about how these devices are used in investigations, about things like whether they are getting warrants for them or not, or what they think the legal policy limitations on their use should be, all these kinds of questions that are absolutely fundamental issues of digital law, public policy and good governance," Wessler said.
The contract does contain one exception for "judicially mandated disclosures," but leaves no method for courts to ascertain that the device was used. The ACLU suspects that through the use of such broad language, the contracts amount to product testing by the Harris Corporation. The nondisclosure agreements essentially allow Harris to examine how effective their devices are and possibly make modifications while shielding the corporation from accountability.
The Tucson Police Department said the contract was one reason why the department held information from an Arizona journalist who filed an open records request for information about the use of the devices. The agreement requires the police department to notify the company any time a records request for information about the devices’ use is filed and also requires the law enforcement agency to help the company decide what records to release.
The Arizona ACLU is seeking an injunction for the records on behalf of the journalist and is arguing that the City of Tucson allowed the Harris Corporation to dictate the city’s compliance with Arizona public records law, violating its legal requirement to respond.
Law enforcement agencies aren’t just using the devices to target specific individuals in specific incidents. Police departments have also used the equipment to intentionally gather information about groups of dissenters, including monitoring the protest activity of the 2012 Republican National Convention in Tampa, Florida, and the occupation of Zuccotti Park in New York City.
"Those kinds of cases where police are trying to figure out who was at a protest because they want to arrest people or they want to track them or surveil them further, this is a really convenient way to do that. It could end up really chilling people’s ability to engage in political speech and protest," Wessler told Truthout.
The cellphone tracking equipment was originally developed for military and intelligence agency use, but is increasingly being marketed in large numbers to municipal and state police departments for average criminal investigations. It’s another plot point in a growing trend of police militarization across the country.
"We should be worried when police are using this kind of very powerful invasive surveillance gear to gather information about people in the US without ever going to a judge," Wessler said.