PROVIDENCE, R.I. (Feb. 10, 2021) – Bills introduced in the Rhode Island House and Senate would ban the warrantless collection of electronic data and the use of “stingrays” to track the location of phones and sweep up electronic communications in most situations. Passage of the bill would not only protect privacy in Rhode Island; it would also hinder the federal surveillance state.
A bipartisan coalition of eight senators introduced Senate Bill 134 (S134) on Jan. 26. A coalition of five Republicans introduced a companion bill (H5319) on Feb. 1. Titled the “Electronic Information and Data Privacy Act,” the legislation would prohibit law enforcement agencies from obtaining “the location information, stored data, or transmitted data of an electronic device; or electronic information or data transmitted by the owner of the electronic information or data to a remote computing service provider without a warrant based on probable cause.
Passage of S134/H5319 would help block the use of cell-site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
The bills specifically prohibit disclosing or copying electronic data that is incidentally collected while executing a warrant and the information would have to be destroyed “as soon as reasonably possible.” Police would only be allowed to transmit or copy data collected under the warrant if the law enforcement agency “reasonably believes that the transmitted data is necessary to achieve the objective of the warrant.”
S134/H5319 includes some exceptions to the warrant requirement. Police would be able to collect warrantless location information if a device is reported lost or stolen by the owner, with the owner’s informed consent; if the owner or remote computing service voluntarily discloses the data; under a belief that an emergency exists involving an imminent risk to an individual of death, serious physical injury, sexual abuse, live-streamed sexual exploitation, kidnapping, or human trafficking; under judicially recognized exceptions to the warrant requirement; and in a few other specific situations.
The bills would also require prosecutors to obtain a judicial order based on probable cause to access data held by third-party service providers including internet, cell phone and email providers.
Any data gathered in violation of the law would be “subject to the rules governing exclusion as if the records were obtained in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 6 of the Rhode Island Constitution.
Passage of S134/H5319 would not only protect the privacy of Rhode Islanders; it would also hinder one aspect of the federal surveillance state.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements (NDA). This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
A Deleware State Police NDA with the Harris Corporation obtained by the ACLU reveals just how much secrecy surrounds stingray surveillance. The ACLU summed up the NDA.
The agreement, signed by a state police detective in 2010, stated that officers could not “discuss, publish, release or disclose any information pertaining to the (cell phone tracking) products” to the general public, to companies, to other governmental agencies, or even to other officers who do not have a “need to know.” A letter attached to the agreement, and signed by Harris Corp.’s account manager, said police are not permitted to talk about the devices with “elected officials.” “Stealth, quiet approach and skilled execution are the glue that transforms weapons and technology investments into capabilities and results,” Harris Corp.’s Michael E. Dillon said in the letter. “Only officers with arrest authority are permitted to use them (Stingrays) or have knowledge of how they work.”
Harris cited federal law for the conditions in the agreement, which it stated is similar to other “intelligence oriented aspects of your operations.”
The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays and access to data held by third parties create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. The enactment of laws limiting or prohibiting the use of stingrays strikes a major blow to the surveillance state and would be a win for privacy.
S134 was referred to the Senate Judiciary Committee. H5319 was referred to the House Judiciary Committee. The bills must pass their respective committees by a majority vote before moving forward in the legislative process.
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