Pubdate: Sun, 29 Mar 2015
Source: San Jose Mercury News (CA)
Copyright: 2015 San Jose Mercury News
Author: Eric Kurhi


Activists, Leaders Push to Learn About Possibly Invasive Devices

The secrecy surrounding a military-grade cellphone-tracking device 
that's already being used in the Bay Area - and coming soon to Santa 
Clara County - has come under increased scrutiny, with local 
governments, courts and lawmakers around the nation joining civil 
rights groups in demanding more information about the potentially 
invasive technology.

Earlier this month, a New York judge ruled that a sheriff's office in 
that state must pull back the curtain on the controversial "stingray" 
devices, which simulate cellphone towers and allow police to track 
suspects but also gather location information on potentially 
thousands of bystanders. Judge Patrick NeMoyer cited a case in which 
the FBI instructed the Erie County Sheriff's Office to drop charges 
instead of revealing any information about the stingray.

"If that is not an instruction that affects the public," he wrote, 
"nothing is."

Locally, privacy advocates have sought more information about systems 
already in use in San Jose, Oakland, Fremont and San Francisco and 
found their requests stymied by nondisclosure agreements and national 
security concerns as reasons to keep mum.

It recently became an issue in Santa Clara County, when supervisors 
approved the purchase of one. While the sheriff's department insists 
gathered information will be limited to the targeted person, county 
lawmakers have found themselves in the awkward position of crafting 
rules for the use of the device without having full knowledge of just 
what it can do because the manufacturer and federal authorities 
refuse to detail the device's capabilities even to local officials 
who purchase them.

"I can't even get a disclosure to the contents of the nondisclosure 
agreement, so we don't even know what it is we have agreed not to 
disclose," frustrated Santa Clara County Supervisor Joe Simitian 
said. "It's unlike anything I've previously encountered."

The device can pinpoint a target based on cellphone signals, whether 
in use or not. Stingrays have long been used covertly by the military 
and federal authorities, and an increasing number of local law 
enforcement agencies have been picking them up, commonly via Homeland 
Security funding, as did Santa Clara County.

It functions by emulating a cellphone tower to hijack a signal from 
the target phone, which can then be traced to within 10 feet of its 
location. Privacy advocates are concerned that when it does its 
mimicry magic, every cellphone in the area responds, including those 
of potentially thousands of folks who haven't done anything wrong but 
happen to be in range. They say that to safeguard civil rights, there 
must be rules in place on not only how and when the tracker is used 
on a specified target, but what is done with all the ancillary 
information that is picked up.

"I don't object to the technology in itself," said Mike Katz-Lacabe, 
a former San Leandro school board member and longtime privacy 
advocate. "But if it's being used as a standard tool in standard 
cases, we need to pull back the cloud of secrecy so as a democratic 
society we can decide what tools we use and how."

Simitian, who was alone in opposition to using a $500,000 federal 
grant to get the Hailstorm system before rules about its use were in 
place, pointed to required nondisclosure agreements with both the 
manufacturer, Harris, and the FBI and said there are "obvious 
difficulties in trying to make policy and law with so little information."

County Executive Jeff Smith explained at a recent committee meeting 
on the device that manufacturer Harris won't "discuss the capacity or 
abilities of the device with individuals who are not sworn police 
officers," including elected officials.

Despite what local police may use the device for, it is considered 
first and foremost an anti-terrorism tool. Privacy advocates say now 
that it is being used in domestic policing, its capabilities should 
be disclosed.

"The whole point of keeping military secrets a secret is because 
they're only used in military applications," said Alan Butler of the 
Electronic Privacy Information Center. "But once you start handing it 
out to local law enforcement, and they're using it on the streets for 
random drug busts, it's not a military secret any more - you can't 
have it both ways."

Butler's group and others have been repeatedly rebuffed in requests 
for information. This month, the American Civil Liberties Union filed 
suit against Sacramento County and Anaheim, the latest litigation 
seeking more transparency in stingray use and policies.

State Sen. Jerry Hill, DSan Mateo, just introduced a bill that would 
require adequate public notice and comment before cellphone 
interceptors are acquired. And senators from Florida, Vermont and 
Iowa recently pressed the Federal Communications Commission, the U.S. 
attorney general and the secretary of Homeland Security for answers 
to questions about how, when and by what process the devices are used.

Privacy activists are certain the trackers can be upgraded to do more 
than just locate a cellphone. Other government-contracting companies 
that sell less advanced cellphone surveillance devices boast about 
their broader capabilities.

Meganet's website says its Dominator and Interceptor models can 
intercept voice and text, allow voice manipulation, block channels, 
intercept and modify texts, and call or send texts on behalf of the 
user, among other things.

And activists say the stingrays certainly have the same potential, 
pointing to the Department of Justice's Electronic Surveillance 
Manual, which states that cell site simulators and similar devices 
"may be capable of intercepting the contents of communications and, 
therefore, such devices must be configured to disable the 
interception function, unless interceptions have been authorized."

Santa Clara County is in the early stages of getting a stingray and 
only provided limited information related to the grant proposal in 
response to a public records request from this newspaper. However, 
even agencies that already acquired the devices have revealed little. 
San Jose, which quietly acquired a stingray in 2013, offered heavily 
redacted purchasing documents, citing the Homeland Security Act and 
international arms regulations. It is a similar response seen from 
other agencies that maintain that under those laws, disclosing 
information "is a felony punishable by up to 20 years imprisonment 
and up to $1 million per occurrence." Privacy advocate Katz-Lacabe 
has filed public records requests with more than 200 agencies across 
the nation with all the largest cities and counties, as well as every 
state, and got plenty of responses but little in the way of revelations.

"Pretty much if a law enforcement agency has it," he said, "they'll 
say we have records, but they are exempt from the Public Records Act."

Hanni Fakhoury, an attorney with the Electronic Frontier Foundation 
privacy group, said it was "ridiculous" that it has taken so much 
prying to glean just basic information about the device and its use.

"It's secrecy for the sake of secrecy," he said. "Now they're 
dismissing cases rather than disclosing information - that's not in 
the public's interest. We're not asking for a blueprint, just some 
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