by Derek Gilna
A U.S. senator has added his voice to those of privacy experts who have expressed concern about the use of cell-site simulators (“CSSs”) also known as “Stingrays.” According to a letter written by U.S. Senator Ron Wyden of Oregon to then-U.S. Attorney General Jeff Sessions, “I write today to urge the Department of Justice (DOJ) to be more forthright with federal courts about the disruptive nature of cell-site simulators.”
Wyden noted that the devices “have become standard tools for federal, state, and local law enforcement,” which use them to “locate and identify nearby mobile devices” in criminal investigations. Nonetheless, he said, it is important for the DOJ to explain to the Senate and the public the potential disruption to all cellphones in the area subject to Stingray use by law enforcement.
According to privacy advocate Electronic Freedom Foundation (“EFF”), “CSSs cause (a) phone to connect to the device rather than the cell tower, (and) they actively interfere in communications between cell phones and towers for every phone in the impacted area.” Additionally, data logged by CSSs can reveal intensely personal information about anyone with a phone in the affected area, not just the target of the operation.”
Many are concerned that the use of the devices, without proper statutory guidance or court oversight, could shred Fourth Amendment privacy protections. The Supreme Court also recently addressed this matter in Carpenter v. United States, in which the Court said these devices could only be used after a judge had issued a warrant.
However, individuals such as Wyden realize that to have any chance of preserving cellphone privacy for individuals not engaged in criminal activity, the DOJ must be held accountable for how these devices are used.
EFF explains that, “There is no way for a phone to be configured to avoid sharing its unique identifying number with a CSS. Also, some active CSS are reported to have the capability to intercept and log metadata, such as dialed phone numbers, as well as content, such as SMS [text] messages and phone calls.”
The House Oversight and Government Reform Committee in 2016 investigated the use of CSS devices and called for the creation of uniform standards and policies to regulate their use. Currently, the public knows very little about their use, capabilities, and impact upon use because of very restrictive non-disclosure agreements agencies that use them are required to sign by manufacturers. There is a dearth of legislation regarding states’ usage of the devices. Access to the information collected and the period of storage of all information collected remain shrouded in mystery.
Wyden also commented on possible dangers to public safety by the use of the devices, which can disrupt access to 9-1-1 and emergency calls. “Senior officials from the Harris Corporation—the manufacturer of the cell-site simulators used most frequently by U.S. law enforcement agencies—have confirmed to my office that Harris’ cell-site simulators completely disrupt the communications of targeted phones for as long as the surveillance is ongoing.”
While officials at Harris “claim its cell-site simulators include a feature that detects and permits the delivery of emergency calls to 9-1-1, its officials admitted to my office that this feature has not been independently tested as part of the Federal Communication Commission’s certification process, nor were they able to confirm this feature is capable of detecting and passing through 9-1-1 emergency communications made by people who are deaf, hard of hearing, or speech disabled using Real-Time Text technology,” Wyden said.
In other words, the unregulated use of CSSs is not only a threat to privacy but a possible threat to public safety. Hopefully, we have not heard the last on this issue.
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