Search and Seizure

Tacoma PD Joins the Ranks of Police Agencies Concealing Use of Cellphone Trackers

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Stingray

What's increasingly fascinating about law enforcement agencies' adoption of stingray devices—widgets that spoof cellphone towers to get mobile devices in the area to ping them and reveal their locations—is not the availability of advancing technology for locating people, but the lengths to which cops will go to conceal its use. Technology in all areas advances; telephones led to the invention of wiretaps and pen registers. Subject to properly vetted search warrants, that might just mean it's a new area to which to apply search and seizure protections. But when agencies, like the Tacoma, Washington, police department, conceal the use of stingrays (more generically known as International Mobile Subscriber Identity locators) from city council members, defense attorneys, news media, and even judges, something shady is happening.

This isn't an isolated incident. Last year the LAPD, seemingly always eager to behave in the most morally challenged way, was caught presenting stingrays to judges as old-school, less-intrusive pen registers. In 2011, the Justice Department cautioned federal agents that applications to use pen registers had to be approved by higher-ups after federal judges pushed back on the common use of stingrays under that cover.

Recently, the American Civil Liberties Union uncovered emails among Florida police revealing that such concealment is not just common practice, but policy followed on the advice of federal agencies. Here's part of one very telling exchange:

As you are aware for some time now, the US Marshalls and I believe FDLE have had equipment which enables law enforcement to ping a suspects cell phone and pin point his/her exact location in an effort to apprehend suspects involved in serious crimes. In the past, and at the request of the U.S. Marshalls [sic], the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as "received information from a confidential source regarding the location of the suspect." To date this has not been challenged, since it is not an integral part of the actual crime that occurred.

So this excerpt from a very interesting News-Tribune article about the laborious efforts journalists* went through to discover that the Tacoma Police Department is using stingrays, and the reactions engendered, sounds awfully familiar:

Judge Culpepper [the presiding judge of Pierce County Superior Court] said police must show probable cause to get a pen register order, but as far as he knows, Tacoma police have never said they planned to use a Stingray to collect a suspect's information.

If police delete information gathered from innocents, Culpeper said, "maybe there's no harm." But "If they are storing it, what are they storing it for? And who says they can store it in the first place?"…

Culpepper said he plans to ask more questions of the Police Department when investigators next ask him for a pen register order or a warrant:

"I think I'll probably ask what kind of device are you going to use?" he said.

In refusing the newspaper's request for an interview about the police department's use of the devices, Police Chief Don Ramsdell "cited a nondisclosure agreement it has with the FBI."

So law enforcement agencies from coast to coast, from local to federal, are concealing the use of devices that indiscriminately turn every active cellphone within range into tracking beacons as a matter of policy. Not just the public that pays their salaries and suffers their scrutiny, but even the judges who are supposed to review and approve search warrants are deliberately kept out of the loop.

The police problem in this country certainly includes armored vehicles and bad attitudes, but it doesn't stop there.

*Phil Mocek did much of the heavy lifting with public records requests for information that he then posted at MuckRock.