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Thursday, May 30, 2024

Local law enforcement surveillance policy in question amid expansion of federal intelligence program

Legal experts have largely agreed law enforcement agencies have used phone surveillance technology to provide critical evidence in criminal investigations, but some have also expressed concerns of insufficient guardrails and transparency to ensure its appropriate use. (Courtesy: Federal Bureau of Investigation Facebook)

NEW HANOVER COUNTY — The renewal of a contentious federal surveillance program made national headlines this week, but some experts argue surveillance on the local level deserves similar attention.

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President Joe Biden reauthorized Section 702 of the Foreign Intelligence Surveillance Act on Saturday, which includes a new provision to require data centers assist in federal investigations. Local elected officials voted in favor of the bill, including North Carolina Senators Thom Tillis and Ted Budd and House Representative David Rouzer. 

Congress established the FISA in 1978 to enforce new restrictions on domestic surveillance after revelations of illegal domestic spying, including Watergate and CIA and FBI surveillance of civil rights and anti-war activists.

The 2008 FISA Amendments Act changed the law to include “Section 702,” which authorizes warrantless surveillance of foreigners but sweeps up Americans’ data in the process. In 2023, a court found 278,000 instances of the FBI’s improper use of domestic information gathered from Section 702 in recent years.

Albert Fox Cahn, executive director of the nonprofit Surveillance Oversight Technology Project, told Port City Daily 702 reauthorization has downstream ramifications because law enforcement agencies at the federal, state, and local levels increasingly share surveillance information, in addition to coordinating closely with private sector technology and defense companies.

“How many of those showings of illegally accessed 702 data involved state and local investigations?” he asked.

Andrew Ferguson, a criminal law and surveillance expert with American University, believes increased scrutiny of local police surveillance is important for a different reason:

“Even with all the debates — with Section 702 primarily focused on international users and the collateral impact on U.S. citizens — there’s a bit more regulation than there is in North Carolina.”

Local cell phone surveillance

Legal experts have largely agreed law enforcement agencies have used phone surveillance technology to provide critical evidence in criminal investigations, but some have also expressed concerns of insufficient guardrails and transparency to ensure its appropriate use.

“I would say it is a bit unsettled legally,” University of North Carolina criminal law expert Jeff Welty said. “Whether using the Stingray or a cell-site simulator — whether all the uses of that necessarily require a warrant.”

Stingrays are likely the most notorious form of phone surveillance technology. The term refers to both a specific device and a generic reference to other forms of “cell-site simulator” technology. Cell-site simulators mimic cell towers to intercept mobile phone data. The devices are meant to target an individual under investigation, but can take in information from bystander phones and record their calls in the process. 

While some federal agencies began mandating warrants for Stingray use in 2015, the requirement doesn’t always apply at the state level. North Carolina law enforcement agencies have used pen register orders to gain approval. Pen registers historically referred to devices used to track numbers dialed from a phone. The orders have lower standards for approval and are meant to authorize less expansive searches on suspects than warrants. 

New Hanover County public defender Jennifer Harjo first began raising concerns about local police surveillance a decade ago. In 2014, she emailed local attorneys to notify them she hadn’t seen evidence of court approval for cell phone surveillance technology used by the Wilmington Police Department.

Last week, Harjo told PCD she had only seen proof of a court order to use cell phone location data a few times in the decade since she originally raised concerns.

“Part of the problem is, how are we going to know whether or not it’s improperly utilized, if we’re never told it’s utilized in the first place?” she asked. 

Privacy advocates, such as the North Carolina ACLU, have pushed for legislation to mandate warrants for cell-site simulator usage because of the scope of data the devices can gather — such as location, data, and communications. Welty told PCD judges sometimes are not aware of everything they could be approving when signing off on pen register orders.

“The word Stingray or cell-site simulator might not appear in the application or the order, but it might be the same technology by another name,” Welty said. 

While Stingrays were the origin of Harjo’s concerns in 2014, Lieutenant Greg Willett told PCD Tuesday the department no longer uses them or any other cell-site simulators.

Cell-site simulators are likely the most famous form of police phone surveillance technology, but local law enforcement agencies have used a broad range of other methods, including purchasing phone or car location information from data brokers, using tools and apps such as Fog Reveal, and phone extraction technology, commonly provided by Cellebrite. 

A 2019-2020 budget line item cites the removal of a one-time $8,600 funding item for Cellebrite, with $400 remaining for ongoing annual fees. Willett said WPD still uses the service.

WPD’s 2024-2025 draft budget includes a request to transfer $2,000 in additional funds to cover phone surveillance costs for narcotics investigations. The total would be $41,908, up from $39,908 in the 2023-2024 budget year. It also includes $46,000 for four surveillance vehicles.

“The money allocated as phone surveillance is there because anytime we execute a search warrant on a phone for historic records, it costs,” Willett said. “We have to pay the phone company to get historic records.”

A 2020-2021 WPD budget also notes the $18,075 replacement of a phone unlocking system, stating the agency performs approximately 300 cell phone extractions per year. 

A FOIA request obtained by non-profit Narrative Arts regarding WPD social media surveillance showed a $14,000 annual software subscription with SnapTrends in 2016; WPD did not confirm they still use the technology by press.

Documents from Narrative Arts show New Hanover County Sheriff’s Office also used Stingray, although Lt. Jerry Brewer told PCD he could not disclose details about the office’s current surveillance equipment. A Pender Sheriff’s Office spokesperson said he would look into the matter; Brunswick Sheriff’s Office and Leland Police Department did not respond to PCD’s questions.

Some experts told PCD providing oversight on police surveillance is made difficult by secrecy requirements and the pace of advancing technology. The federal government has required non-disclosure agreements for the use of some equipment, including Stingray.

“I think in this area, law enforcement has really driven the train because they know the technology, they know what they want to use, and they have compelling reasons for using it,” Welty said. “And so I think sometimes the folks we expect to serve as a counterbalance to law enforcement have been kind of a step behind and haven’t really been able to carry out their role because they’re not as familiar with the tools.”

Stingray and transparency concerns

The City of Wilmington purchased Stingray from Florida-based defense contractor Harris Corp. for $135,000 in 2008 — the company was the only provider of the technology at the time — and spent at least $500,000 in total costs with the company through 2015. 

Harris Corp’s Federal Communications Commission’s equipment grant authorization required local police purchasers to coordinate with the FBI on the use of its devices. 

In 2019, Harris Corp merged with L3 Communications to become L3Harris, one of the country’s largest defense contractors. L3Harris stopped selling Stingray directly to local police departments in 2020, allowing other companies to fill the void with different cell-site simulators, such as ArrowHead, which WPD maintained for at least $50,000 until 2019. Willett told PCD the department no longer uses the product.

Former FBI investigator Frank Brostrom told PCD law enforcement agencies use the tool responsibly to assist investigations of severe crimes with rare exceptions. He cited the importance of accessing cell phone data to help him track down the murderer of a five-year old child in 2009, although he noted he did not use a cell-site simulator in the case.

Alternatively, Cahn argued the history of secrecy regarding police use of Stingray, as well as cases in which it was used without court approval, make it difficult to guarantee oversight.

“I always am nervous about the potential for abuse of this technology,” he said.

A decade ago, WPD and other law enforcement agencies across the country referred questions about Stingray to the Federal Bureau of Investigation. Public records requests and court cases later revealed the reason — the FBI mandated police departments sign non-disclosure agreements to purchase or use cell-site simulators.

In 2021, the ACLU filed a public records request and sued the FBI to determine if the federal agency still enforced NDAs for its cell-site simulators; the FBI confirmed the continued practice in 2022.

In several states, law enforcement agencies have argued in court that non-disclosure agreements prevented them from informing judicial officials about their use of Stingray. In 2014, the federal government went so far as to seize Stingray-related documents in Florida to intervene in an ACLU public records request.

A non disclosure notice obtained by nonprofit news organization Oklahoma Watch showed the FBI instructed Oklahoma law enforcement not to include use of its cell phone surveillance technology as court evidence, and to use parallel investigative methods to corroborate evidence and conceal the use of its technology.

The ACLU found the New York Police Department used Stingray over 1,000 times from 2008-2015 by obtaining lower court orders such as pen register orders.

North Carolina law enforcement agencies have also used pen register orders to authorize Stingray. State senator Tony Rand — the primary sponsor of the 1988 bill creating NC’s pen register statute — told Charlotte Observer he did not intend the statute to authorize cell-site simulator phone surveillance. 

PCD obtained FOIA documents from investigative reporter Dell Cameron showing NHCSO strategically used the orders as well. In a 2014 email titled “discovery request letter,” an NHCSO employee wrote:

“Your idea re pen registers is a good one. Your name would then not be disclosed on the orders. This would help prevent you getting called as a witness in my opinion.”

In another 2014 email, a NHCSO employee shared a Wired article on the federal seizure of Stingray-related documents in Florida to intervene in an ACLU public records request.

“Thanks to a local partner for finding this one … I guess this is one way to avoid FOIA and the ACLU,” they wrote.

The ongoing debate

James Payne, a criminal defense attorney in New Hanover and Brunswick counties, was one of the lawyers Harjo messaged a decade ago. On Tuesday, he told PCD his concerns remained as he’d seen evidence of cell phone surveillance technology improperly used. 

“The use of technology has exponentially exposed the privacy of my clients beyond any person’s wildest imagination,” he said.

Though clear he had great respect for law enforcement and understood the desire to keep investigative techniques secret, Payne believed the lack of transparency regarding potential violations of the fourth amendment warrants scrutiny.

“Law enforcement does have legitimate concerns to investigate,” he said. “But the extent to which they can monitor your most private conversations and personal affairs. The average citizen who is not involved in the criminal justice system is completely unaware of that.”

The capacity for warrantless investigations quietly expanded in North Carolina last year. In October, the General Assembly created the Joint Legislative Committee on Government Operations, also known as “Gov Ops.” Its provisions allow warrantless investigations for “possible acts of malfeasance.”

Documents show the State Bureau of Investigations has also used cell-site simulators; the bureau did not respond to questions about its current surveillance technologies.

But some pending bills are pushing the needle in the other direction. A federal bill to prevent law enforcement from circumventing the warrant process through the “data broker loophole” — the Fourth Amendment is not for Sale Act — passed in the House last week.

The issue came to broader public attention after Wired revealed a $6 million federal surveillance program called Data Analytical Services, which partners with AT&T to allow local and state law enforcement agencies access to call records of any individual who had been in contact with a criminal suspect.

Willett said WPD hasn’t used this method; other local law enforcement agencies did not respond to the question.


Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.

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