For the past several years, the Houston Police Department (HPD) has been quietly using contentious surveillance equipment that can amass records from cellphone calls and text messages even up to a half a mile away, records obtained by Truthout and Houston city council agendas reveal.
HPD purchased the surveillance software, called "StingRay II" in October 2012 after Houston city council members approved $100,200 in asset forfeiture funds to be used for its purchase. The department appears to have obtained the surveillance hardware as early as 2007, according to city council meeting minutes.
The department is just one of a growing list of local police departments across the nation which have obtained the technology and have kept its use secret, citing nondisclosure agreements with Harris Corporation, the technology's manufacturer, and the FBI.
Houston residents who have nothing to hide from law enforcement should still be concerned about the technology's use, because, if they happen to be in the same neighborhood as a police target, their information will also be spied upon, and possibly retained by the department for an unspecified amount of time.
The portable device is known as a cell site simulator, which collects vast amounts of cellphone data by mimicking a cellphone tower, sending out a faux signal that tricks cellphones nearby into transmitting their locations, and identifying information and communication records - in real time.
The technology was originally developed for the military and intelligence agencies, including the NSA, and is part of the growing and controversial trend of local police departments obtaining military hardware and spy craft technologies throughout the United States.
According to another document obtained by the American Civil Liberties Union (ACLU), an HPD homicide sergeant requested that the Federal Communications Commission (FCC), grant Harris Corporation permission to sell the city a StingRay device. Because the device intercepts and interferes with cellphone networks, which are regulated by federal law, Harris Corporation needed the FCC's approval.
According to Houston city council meeting minutes from November 2007, HPD officials were granted approval for $271,430 in grant funding to aquire "communications tracking software and hardware" from Harris Corporation. Another set of city council minutes from June 2011, show HPD was granted approval for another $399,107 in grant funding to aquire additional "covert surveillance equipment, software and training" from Harris Corporation. Meeting minutes show HPD was granted approval in October 2012 for the purchase of the software revealed in the purchase orders Truthout obtained.
According to documents obtained by Truthout, the department purchased the software, StingRay II, which can support the tracking of 3G smartphones and several types of supporting maintenance equipment, including "harpoons," which amplify the device's signal.
"HPD purchased surveillance equipment listed in past Houston City Council agendas. We do not discuss strategic operations or equipment related to strategic operations, however, our department follows all federal and state guidelines on the use of any equipment," said an HPD spokesperson in a statement to Truthout via email.
But this is a disingenuous response at best, because state and federal guidelines regulating the use of this technology are murky, contain various loopholes, or at worst, are completely nonexistent. In Texas and elsewhere, different types of metadata information can be obtained through federal emergency orders, which do not require a warrant.
Currently, Texas law requires a search warrant to obtain the content of certain cellphone information, including content of calls, text messages and emails. But other types of metadata, including call logs, location data and other records, do not, however, currently require a warrant to obtain.
A bill was introduced during Texas' last session which would have required law enforcement to obtain a warrant before accessing this kind of data, but that bill died, and a recent decision out of San Antonio's Fourth Court of Appeals ruled that no warrant is required.
Civil liberties experts warn that this metadata can be more invasive than the actual content of calls and emails, and essentially amounts to an unconstitutional search. Police can track exactly where a person has been and who they've contacted, whether or not they've called a suicide hotline, for instance, or some other sensitive communication.
In other states where the technology has been deployed, judges who have approved the orders have not always been fully informed or told that police officers are able to scoop up information about a whole neighborhood within a half-a-mile radius of the device.
Many Harris County judges refused a request for comment on the implications of HPD's use of the technology on evidence presented in court, or whether or not they were aware of the technology's capabilities.
The lack of transparency regarding how the device is used led one federal magistrate judge in Texas to deny the Drug Enforcement Agency permission to use a StingRay device in 2012 because the agency had no plan for protecting the privacy of the cellphone numbers of innocent people that would be gathered.
Houston Council Member Brad Bradford, a former Houston police chief, says he doesn't remember the surveillance device ever being discussed among city council members or specifically approving funds for the device, only that council has approved funds for various technologies for the police department.
He told Truthout he supports clear guidelines for how the technology can be used, and a reporting requirement to disclose details related to its use.
"Every specific use of technology that law enforcement must utilize doesn't necessarily have to be exposed to the public, but I think that guidelines which regulate the use of technologies of this particular nature ought to be exposed," Bradford said. "I think that our laws across the land have to catch up with this type of technology."
According to civil liberties advocates, the use of non-disclosure agreements by the FBI and Harris Corporation have made it difficult for policy makers in Texas, and across the country, to set thorough guidelines to regulate the technology's use.
"On the one hand, it's actually quite legitimate as a government function for there to be exceptions to public information that would protect investigative techniques from being released," said policy strategist Matt Simpson with the ACLU of Texas. "The thing with the StingRay, though, is that the nondisclosure is sweeping . . . it's an overreach."
The ACLU of Texas and the Texas Electronic Privacy Coalition are pushing for more stringent rules to ensure judicial oversight of the surveillance technology during Texas' next legislative session in 2015.
The coalition is pushing a three-pronged approach for legislation that would regulate the use of StingRay cellphone tracking technology in Texas, including requiring a warrant for a StingRay deployment, a data retention policy in which the records collected would be regularly purged and a reporting requirement which would require law enforcement officials to disclose how many times the technology is used and for what purposes.
Chris Soghoian, chief technologist with the ACLU's Speech, Privacy and Technology Project, testified before the Texas Senate Committee on State Affairs during a hearing in September about the growing use of StingRay surveillance technology around the country, and it's use in Texas, arguing the technology's use should be more tightly regulated. The senators on the committee, including Committee Chair Sen. Craig Estes, were previously unaware the device was being used by both the HPD and the Fort Worth Police Department.
The ACLU has obtained public records that document at least 43 police departments in 18 states using StingRay equipment.
During that same hearing in September, Houston police officer James Taylor gave contradictory testimony that HPD's criminal investigative efforts have been hampered or rendered ineffective by its having to obtain a search warrant to acquire cellphone location data from cellphone companies, which he called "non-constitutionally protected data." Currently the most common way the cellphone location data is obtained by law enforcement is through requests to network providers.
But his testimony appears as a pre-emptive argument to push back against plans for legislation to limit cops' access to cellphone metadata in the coming legislative session, since state law doesn't require a warrant to collect this type of data currently. Bill Exley, a prosecutor with Harris County District Attorney's Office, backed up Taylor during the hearing.
In spite of Stingray's scooping up of extra data, in the absence of legislation, it's not clear that if police are not required to seek a warrant to obtain the data from a cellphone company, that they would nonetheless need one before deploying a device which can gather the data directly.