It’s becoming increasingly evident that governments see our phones as personal tracking devices. Read on for a new slant on these words: dirtbox and stingray.

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Boeing is at the center of the latest Department of Justice privacy story that broke in the Wall Street Journal ($) Thursday.[icopyright one button toolbar]

The claim: the DOJ, via its US Marshals Service, has been using airplanes to secretly collect cellphone data from phones on the ground since 2007.

Flying stingray – airborne fake cell tower that intercepts cellphone data. @WSJ: http://t.co/TgZfYtCdux pic.twitter.com/dFlqiyPjTk

— Alex Howard (@digiphile) November 13, 2014

The DOJ is using Boeing-produced Digital Receiver Technology (DRT or dirtbox) in Cessna aircraft at five major U.S. airports to secretly and indiscriminately collect cellphone unique identifying information from phones on the ground, according to the report. This is the same type of information that law enforcement used get only with a phone company subpoena.

The DRT mimics a cellphone tower, tricking phones so that they route their data through it. Neither the phone nor phone owner has a clue, unless you’ve bought a tres expensive cryptophone. However, the surveillance tech may lead to dropped calls and, reportedly, there is a need to “make sure it didn’t mess up calls to 911.”

Oh, and encryption won’t protect your normal smartphone.

They call them stingrays

The Boeing unit appears to be a super-charged version of similar tech that law enforcement — local and federal — has been using on-the-ground for years. These devices also secretly and indiscriminately mimic cellphone towers and are known as stingrays or cell site simulators. Defense contractor Harris Corporation is the dominant player.

There is anecdotal evidence that judges don’t understand the surveillance that they are authorizing. That some warrants have been obtained through lies. That Harris fibbed on its FCC application (hint: not primarily used in emergencies).

And that the FBI, the US Marshals Service, local police and district attorneys all hide behind “non-disclosure agreements” to justify failure to get warrants or fess up when the equipment is used. Nevertheless, since 2007 one Texas judge has been saying “no” to vague and overly broad requests for cellphone data, like that gathered by stingrays. He’s an outlier, though.

A comprehensive war on privacy

Thus the WSJ story is only the latest in the drip–drip–drip revelations that illustrate the war on privacy being carried out at all levels of government in the United States. It’s much more than Snowden and the NSA (Department of Defense).

The Electronic Frontier Foundation (EFF) has called the use of these cell site simulators “the biggest technological threat to cellphone privacy that you don’t know about.”

Since EFF made that assertion in 2012, we know that at least 46 state and local police departments have cell site simulators and that they are often used without a warrant. In other words, the NSA has no monopoly on warrantless surveillance that has been shown to infringe on 4th amendment rights.

This essay examines cases in California, Florida, Georgia, Idaho, Pennsylvania, Washington state and the District of Columbia.

Widespread stingray use in Tacoma, Pierce County

In August, the Tacoma News Tribune reported that local police have used stingrays since 2009. The equipment was purchased with a grant from the Department of Homeland Security.

You don’t have to be a criminal to be caught in this law enforcement snare. You just have to be near one and use a cellphone.

[…]

No state or local law enforcement agency in Washington state has acknowledged possessing the required surveillance devices. Tacoma Police Department has not confirmed that it has a Stingray, but Pierce County sheriff’s spokesman Ed Troyer said Tuesday that the Police Department sometimes assists the sheriff’s office with the device.

[…]

Deployed in tandem with analytical software, such cellphone surveillance technology could be used by police to analyze massive amounts of metadata — who you call or text, when you contact them and for how long you talk — to determine associations between groups of people.

[…]

Neither the Pierce County Prosecutors Office, nor public defenders — not even superior court judges — were aware of Tacoma police using this surveillance technique, officials with those departments said Tuesday.

“We have not been given any information that any information was obtained by using something like a Stingray,” said Michael Kawamura, director of the Pierce County Department of Assigned Counsel.

He said other jurisdictions have used the device without a warrant — and if that’s happening here, Kawamura said, that’s a problem.

[…]

Ronald Culpepper, the presiding judge of Pierce County Superior Court, said Wednesday that this type of surveillance device has not been mentioned in warrant applications that he has seen.

Other judges were surprised when they heard TPD was using this technology, he said. “People had never heard of it.” He expects judges to discuss the legal implications of Stingray use in the next couple of weeks.

The local courts were unaware that police were using this equipment. And yet, in five years, Tacoma’s equipment had been used 179 times. That’s almost once a week.

ACLU disclosure requests in Florida stymied

In Florida, police did not disclose to the courts (a lie of omission) that they had used this surveillance equipment:

[P]olice acknowledged they failed to obtain search warrants because they had signed a non-disclosure agreement with the manufacturer of the cellphone surveillance equipment that was used during their investigation.

According to emails obtained by the ACLU:

[A] Sarasota Police Department sergeant wrote that in a warrant application to a judge, a North Port Police Department detective had “specifically outlined the investigative means used to locate the suspect,” and the sergeant asked that the detective “submit a new PCA [probable cause affidavit] and seal the old one.” In other words, fix the old affidavit and keep the use of the stingray equipment secret.

The sergeant also wrote, “In the past, and at the request of the U.S. Marshalls [sic], the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as ‘received information from a confidential source regarding the location of the suspect.’ To date this has not been challenged…”

As if that weren’t bad enough, the US Marshal’s office in Tampa came to Sarasota and removed the records. And how did they justify this?

Attorneys for the city said the records belonged to the U.S. Marshals because the cell phone investigations were done by an SPD detective who is also assigned to a U.S. Marshals task force.

Another legal loophole: the FBI (DOJ) makes law enforcement sign a non-disclosure agreement before buying the stingray equipment.

For example, Wired reported this summer that since 2010 the Tallahassee police department had used stingrays at least 200 times. They never told a judge “because the device’s manufacturer made the police department sign a non-disclosure agreement that police claim prevented them from disclosing use of the device to the courts.”

Also, a civil suit alleges that a US Marshals Service/Sarasota Police Department SWAT team burst into the home of Louise Goldsberry in 2013. Without a warrant. Based on stingray surveillance. (She was not the the intended target.) “I’m going to trial to see if we still have fourth amendment rights,” she said.

Then there’s northern California

In northern California, Homeland Security grant money has bought stingrays for at least seven law enforcement agencies in Oakland, San Francisco, San Jose, Alameda County and Sacramento County.

Our partners at USA Today have confirmed that at least 25 other local police agencies across the country are using StingRays or similar devices. Others refused to provide records, citing non-disclosure agreements with the Harris Corporation.

And Georgia

Gwinnett County Police have been “they the DA’s office gets court approval … but “those court orders – less than warrants — are sealed.” In other words, trust us, we’re just honoring our NDA.

D.A. Porter told The 11Alive Investigators that a confidentiality agreement with Harris Corporation, the manufacturer of the Stingray, prohibits him and his assistant prosecutors from revealing the existence of the fake cell towers, even in a court of law.

There is a Georgia law that shields Homeland Security information, but these devices are not being used for DHS surveillance.

Tip: @LibertyIdeals

And Idaho

Interceptors have been found in Boise, Idaho. KTVB got the Boise police department to concede that they use stingrays but “[a] regional FBI agent would only tell us the Stingray is a sensitive technique so no one will discuss how it’s used.”

Also, according to KTVB, security specialist Buzz Bruner told the station that an interceptor was detected in Idaho Falls in September.

Tip: Alex Jones

And the Keystone State, Pennsylvania

On Veterans Day, WTAE (Pittsburgh) reported that Pennsylvania State Police had ordered a stingray. A Philadelphia indie press reported in April that the state police bought two Harris stringrays in 2013: total cost of $232,772.

WTAE filed a FOIA request to obtain information about stingray purchases.

State police redacted most of the documents, saying the records are exempted under federal law, and noting, “If disclosed, would be reasonably likely to jeopardize or threaten … public safety or preparedness.”

Tip: Nate Wessler

And the District of Columbia

News reports from October revealed that District of Columbia police got a $260,000 grant from (who else) DHS to buy a stingray. In 2003. The pricy surveillance equipment collected dust for five years but is now in use.

If DC police are driving around with a Stingray device, they’re likely capturing information about the locations and movements of members of Congress, cabinet members, foreign dignitaries, and all of the other people who congregate in the District.

Tip: Jeffrey Light

Widespread fake towers?

In July, users of an ultra-secure cellphone released this map of 17 places where the phone had detected a stingray-type interceptor.

“What we find suspicious is that a lot of these interceptors are right on top of U.S. military bases. So we begin to wonder – are some of them U.S. government interceptors? Or are some of them Chinese interceptors?” says [Les Goldsmith, the CEO of ESD America]. “Whose interceptor is it? Who are they, that’s listening to calls around military bases? Is it just the U.S. military, or are they foreign governments doing it? The point is: we don’t really know whose they are.”

[…]

Whenever he wants to test out his company’s ultra-secure smart phone against an interceptor, Goldsmith drives past a certain government facility in the Nevada desert… He knows that someone at the facility is running an interceptor, which gives him a good way to test out the exotic “baseband firewall” on his phone.

[…]

Though the standard Apple and Android phones showed nothing wrong, the baseband firewall on the Cryptophone set off alerts showing that the phone’s encryption had been turned off, and that the cell tower had no name – a telltale sign of a rogue base station. Standard towers, run by say, Verizon or T-Mobile, will have a name, whereas interceptors often do not.

[…]

“If you’ve been intercepted, in some cases it might show at the top that you’ve been forced from 4G down to 2G. But a decent interceptor won’t show that,” says Goldsmith. “It’ll be set up to show you [falsely] that you’re still on 4G. You’ll think that you’re on 4G, but you’re actually being forced back to 2G.”

So maybe my AT&T slowdowns aren’t the fault of the network, after all.

FCC review?

In August, the Wall Street Journal reported:

The Federal Communications Commission has established a task force to study reported misuse of surveillance technology that can intercept cellular signals to locate people, monitor their calls and send malicious software to their phones (emphasis added).

But in this instance, the FCC is concerned about “gangs” or “foreign governments,” not domestic institutions. Civil liberties groups are arguing that the scope of any investigation needs to be much wider.

You should agree.

Only 11 states — Colorado, Illinois, Indiana, Maine, Maryland, Minnesota, Montana, Tennessee, Utah, Virginia, and Wisconsin — require police to get a warrant to use a stingray. The Seattle city council requires police to get approval before buying surveillance technology.

It should be all 50. Let’s make it so.