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      We Know Terrifyingly Little About How Cops in New York Track Cell Phones

      February 18, 2016

      New York City cops have used 'StingRay' technology to track cell phones more than 1,000 times since 2008. Photo by Erland Grøtberg/via Getty

      For the past several years, police departments across America have been using a nifty new piece of technology to trace the location of suspects. IMSI-catchers—commonly known as "StingRays" after the most popular brand name—are small boxes that gather all cell signals in a given area by mimicking a cell phone tower. And they've grown increasingly popular even as the federal government has issued stricter guidelines as to where and how the technology should be used.

      But thanks to bizarre non-disclosure agreements struck between the FBI and the manufacturer of the StingRay, the Harris Corporation, the devices are rarely entered into evidence as part of a criminal case. That often leads to prosecutions marred by glaring holes as to exactly how the cops knew where a person was located, defense lawyers argue. The New York Police Department and other law enforcement agencies are strictly barred from speaking about the use of StingRays, even under court order, and even if their use is central to prosecution.

      "There are all these cases where the police just magically locate people, so the police will say we went looking and found this guy at a specific location," said Joshua Insley, a defense attorney in Baltimore who's been working on cases involving StingRays for the past several years. "Then you actually interview the defendant and he'll say, 'Yeah, my phone started ringing, it wouldn't turn off, I didn't have any service and all of a sudden the police were at my door'."

      Disturbances of cell service are often one of the first signs of a StingRay-assisted apprehension, according to Insley, but understanding the full scope of their use would require some level of cooperation by law enforcement. Lawyers and due process advocates have been fighting for years to get information on Stingrays and their use dished out to the public, with only occasional success.

      Last week, the NYPD finally answered some parts of a Freedom of Information Law (FOIL) request by the New York Civil Liberties Union (NYCLU) about the use of the StingRay. The documents released, which showed that the NYPD has used the StingRay more than 1,000 times since 2008, paint a portrait of a law enforcement agency that uses the stingRay to apprehend individuals suspected of committing serious crimes like murder but also more trivial infractions like a prank call to 9-1-1.

      Of course, you shouldn't bother asking New York's finest or any other police department for specifics of why or how they use the StingRay. They're not telling.

      In a statement to VICE, the NYPD said that even though StingRays are capable of storing communications and collecting phone numbers of thousands of New Yorkers in a single go, the privacy of New Yorkers is not at risk. "What is at risk is the safety of New Yorkers, without the limited use of this technology to locate dangerous fugitives," J. Peter Donald, the director of communications for the department, said in a statement.

      While the documents released do show that New York police have used the StingRay to locate suspected murderers, rapists, and kidnappers, a litany of other charges have apparently merited the use of StingRays as well. These include money laundering, contempt of court, and identity theft.

      "The scary thing about them is we really have no idea when they're being used," said Sid Thaxter, an attorney at the Bronx Defenders. "This is military grade technology being used on civilians and intentionally hidden from the judicial process. It is theoretically possible to uncover the use of IMSI catchers by looking at the circumstances of someone's arrest or gaps in paperwork, but that is only guesswork."

      More than a hundred people have been arrested after a StingRay helped locate them in Bronx County over the past seven years, and Thaxter believes that at least a few of his office's clients have been apprehended that way. Not that any mention of a StringRay ever comes up in court documents.

      You have to look pretty hard to get even a vague sense these devices might be in play.

      For example, last year, a Bronx man named Dominick Davis who was charged with murder filed a motion attempting to have his confession tossed after police officers used a series of cell phone "pings" to find his location. They did this without a warrant and failed to disclose to a judge the next morning that they had already "pinged" his phone. In testimony, the head of the NYPD's Bronx Homicide Unit, Lieutenant William O'Toole, explained that the department will often proceed without a court order if officers need to locate an individual immediately, and that Davis was fairly easy to locate thanks to information provided by his cell phone company. But the NYPD was unclear about which cell phone company was contacted, instead focusing on the "pings" that were received from a cell phone tower.

      Davis's motion was denied.

      It's unclear whether a StingRay was actually used in Davis's apprehension, but cases like this show just how fraught the distinction can be between lawful and unlawful action by police, especially when they've agreed to keep a tight lid on their technology.

      In April, Detective Emmanuel Cabreja, a member of the Baltimore Police Department's Advanced Technical Team, was called to testify in the trial of two people who had been tracked and apprehended with the help of a StingRay in 2013. The detective came to court with the FBI's non-disclosure agreement in hand.

      Joshua Insley asked Cabreja, "Does this document instruct you to withhold evidence from the state's attorney and Circuit Court, even upon court order to produce?"

      "Yes," Cabreja replied.

      "Our understanding in Baltimore was that the StingRay was supposed to be of use in the most extreme circumstances, like terrorism. Who cares about the Fourth Amendment if you need to locate a bomb?" Insley told VICE. "But the first case I got was of an attempted robbery of a pizza delivery man. It's now in use as a standard crime-fighting device, and there are tons of cases where the police just magically find someone."

      StingRays first gained wide use by police departments after passage of the 2001 Patriot Act, when "pen register orders," also known as "trap and trace court orders," began to proliferate in criminal investigations. Unlike the high privacy standards imposed on judicial warrants for surveillance, pen register orders only require any information obtained to likely be "relevant to an ongoing criminal investigation." (Last year, though, the Department of Justice shifted its own policy to require that all federal agents get a judicial warrant to deploy a StingRay, and not just a pen register.)

      That means the feds are adhering to a higher privacy standard than many local beat cops.

      "The NYPD said to us that it doesn't have a written policy, which is very concerning. This is a very powerful surveillance device, and if it's going to be used, it should certainly be used with robust policies in place," said Mariko Hirose, a senior staff attorney at the New York Civil Liberties Union. "In certain configurations, a StingRay can intercept the contents of communications and emails."

      Local cops, of course, tend to deny this.

      "The NYPD does not capture the contents of communications, as the NYCLU stated," Donald, the department spokesman, told VICE. "Furthermore, the NYPD does not and never has swept up information from cell phones nearby."

      Until there's an actual policy in place for disclosing their use, or police departments divulge more about their new favorite toy, we'll just have to take their word for it.

      Follow Max Rivlin-Nadler on Twitter.

      Topics: Crime, New York, Police, New York City, NYPD, Stingray, Cell phones, Surveillance, Technology

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