Police departments across the country have been secretly deploying Stingray surveillance technology to monitor unsuspecting cellphone users, while refusing to get judicial warrants or, if pressed on the subject, citing confidentiality agreements in hiding their use.

Law enforcement has shown a willingness to drop cases built on information gleaned from Stingrays, also known as cell-site simulators, rather than reveal any details about their operations. So little is known about how they are deployed.

But Ars Technica reports that the San Bernardino County Sheriff’s Department used Stingrays hundreds of times in a year without getting a warrant and may have misled judges in doing so. Documents obtained through a public records request showed the department used the device 303 times between January 1, 2014, and May 7 of this year under questionable circumstances.

Ars Technica said county lawyers indicated to them that the “pen register and trap and trace order” applications submitted to the judge were warrant requests, which they are not. The order request harkens back to simpler, pre-cellphone times when surveillance was limited by technology to asking the phone company for phone records.

But Stingrays are a new breed of surveillance creature. They pretend to be cell towers and fool wireless phones into establishing a connection. Once connected, they can determine cell locations and download information of people who are not suspects in an investigation, including text messages, emails and documents, raising all sorts of privacy issues.

The pen register “template is likely to mislead judges who receive applications based on it because it gives no indication that the Sheriff’s Department intends to use a stingray,” American Civil Liberties Union (ACLU) attorney Nathan Wessler told Ars Technica.

Obfuscation is the hallmark of Stingray use. Harris and the FBI require law enforcement agencies to sign nondisclosure agreements that prohibit them from divulging anything about the technology—including their very existence—making court oversight problematic.

Pen register applications are typically vague and wouldn’t necessarily tip off a judge that technology being used is more invasive than GPS tracking. They are also typically sealed by the court and not available for public scrutiny any time soon.

It would not be surprising that San Bernardino authorities are not asking for Stingray warrants. The County Counsel’s office responded to a media request last November for information about its Stingray use by arguing that it didn’t need a warrant because, “A Stingray device does not track movement.”

Stingrays have been around for years and were mostly used domestically by the FBI. But the accelerated militarization of local police since 9/11 has contributed to the widespread use of the technology by local cops. An estimated 40 or 50 agencies use them, but there is no way to get an accurate count.

Washington State recently passed legislation that requires a warrant for Stingray surveillance and California is considering doing the same, again. Senate Bill 178, also known as the California Electronic Communications Privacy Act (CalECPA), “would require a search warrant or wiretap order for access to all aspects of electronic communications” except in emergencies, according to a Senate analyst. The bill, which also prohibits keeping the acquired information forever, is just starting its trek through the legislative committee process.

Three previous version of the legislation were vetoed by the governor in 2012 and 2013.  

–Ken Broder

To Learn More:

County Sheriff Has Used Stingray over 300 Times with No Warrant (by Cyrus Farivar, Ars Technica)

San Bernardino Folo Up PRA Stingray Technology (San Bernardino County Counsel)

State Laws Start Catching Up to Police Phone Spying (by Joshua Brustein, BloombergBusiness)

Response to Public Records Act Request (San Bernardino County Counsel)

ACLU Sues 2 Cop Shops over Stingray Surveillance Secrecy (by Ken Broder, AllGov California)

Local Cops Throughout the State Use Anti-Terrorism Stingrays to Track Cellphone Users (by Ken Broder, AllGov California)