The surveillance state: bigger, broader, and less accountable

Not only are local, state, and federal authorities finding more innovative, efficient, and comprehensive ways to spy on us, they’re doing it in ways that are less transparent and less accountable. From the ACLU:

It appears that at least one police department in Florida has failed to tell judges about its use of a cell phone tracking device because the department got the device on loan and promised the manufacturer to keep it all under wraps. But when police use invasive surveillance equipment to surreptitiously sweep up information about the locations and communications of large numbers of people, court oversight and public debate are essential. The devices, likely made by the Florida-based Harris Corporation, are called “stingrays,” and unfortunately this is not the first time the government has tried to hide their use.

So the ACLU and ACLU of Florida have teamed up to break through the veil of secrecy surrounding stingray use by law enforcement in the Sunshine State, last week filing a motion for public access to sealed records in state court, and submitting public records requests to nearly 30 police and sheriffs’ departments across Florida seeking information about their acquisition and use of stingrays (examples here and here).

Also known as “cell site simulators,” stingrays impersonate cell phone towers, prompting phones within range to reveal their precise locations and information about all of the calls and text messages they send and receive. When in use, stingrays sweep up information about innocent people and criminal suspects alike.

In the case that spawned this campaign, the attorney for a defendant arrested on suspicion of stealing a cellphone asked the the state to reveal how the police knew to search his apartment. The state refused to answer. It took a judge to compel the state to answer, and even then only after the public and press were barred from the courtroom, and the entire proceeding was put under seal.

Only later, when the case was heard on appeal, did the most jaw-dropping fact leak out. As two judges noted during the oral argument, as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant. The ACLU concludes:

Potentially unconstitutional government surveillance on this scale should not remain hidden from the public just because a private corporation desires secrecy. And it certainly should not be concealed from judges. That’s why we have asked the Florida court that originally sealed the transcript to now make it available to the public. And that’s also why we have asked police departments throughout Florida to tell us whether they use stingrays, what rules they have in place to protect innocent third parties from unjustified invasions of privacy, and whether they obtain warrants from judges before deploying the devices.

A nondisclosure agreement between a private company and a government agency doesn’t trump the Fourth Amendment. Or at least it shouldn’t.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."

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Radley Balko · March 3, 2014