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Cell Phone spying: Is there is a limit on trusting San Diego Police?

On Behalf of | Apr 21, 2015 | Firm News |

Did we citizens of San Diego ever have a discussion or a vote about the rights we would be giving up or do we give the San Diego police this discretion?

It sweeps to get data.  Most of the information is from law abiding folks.  I know people will say, “they can look because I dont have anything to hide”.  That is not the point.  The point is should the government on legal ground to be collecting the information in the first place?  The system is $400,000.  I do not want to hear an argument or see an article about how much it costs to store body camera video again.

There is a trust we citizens give the government.  We accept giving up certain rights.  In return we are afforded public safety.  There are certain rights we do not waive (see constitution) and the government should be dilligent in adhering to its mission to serve the citizendry.


America’s modern history is now defined as pre/post 9/11, a terrible day that rocked Americans and thrust the country into a perpetual “war on terror.”

But with the permanent war footing came a highly secretive world of espionage tactics that threatens to throw civil rights out the window. The intrigues of the clandestine world eventually spawned surveillance whistleblower, Edward Snowden, who spoke-out against a repressive U.S. government bent on obstructing the very fabric of our Constitution.

Henceforth, this new millennial era will view individual rights in a pre/post Snowden lens.

Case in point surrounds new revelations about an invasive surveillance program known as “Stingray” boxes. They trick cell phone towers into divert mobile calls of targeted individuals to the Stingray box allowing law enforcement to record and track suspects’ location. The trouble is two-fold, first the device can capture any cell phone’s users in the vicinity of the target and two, the targeting isn’t always subject to warrants issued by judges.

This week the San Diego Police Department acknowledged to this reporter that it owns and uses the “Stingray” technology. The police department released a heavily redacted Purchase Order from the Harris Corp, the company who originally created the surveillance box for the CIA and US military to track terrorists worldwide. The pricy equipment costs the law enforcement community somewhere around $400,000.

A spat of mysterious evidence collection processes, set off an avalanche of inquiries that ultimately disclosed law enforcement use of the Stingray devices at the state and local levels. Once the use of the questionable cell phone data was exposed, defense attorneys pressured city/state/federal prosecutors to come clean. However, federal agencies balked and either pled-out the criminal cases or dropped them altogether in an effort to keep the program secret.

So how exactly did the government keep the secret? We now know the federal government through the Harris Corp employed nondisclosure agreements to force law enforcement agencies refrin from even discussing ownership of the surveillance boxes. Looking at the more sinister side of the terrorist tracking devices, legal experts contend law enforcement agencies were trying to hide their illegal or lack of warrant approved wire-tapping. The problem is, evidence collected was not subject to judicial review or disclosure to the defense under the exculpatory rules for prosecutors and essentially removed due process for defendants offered under the Fourth, Fifth, and Sixth amendments.

A couple of cases, one in Buffalo New York and the other in Baltimore, Maryland have turned the shadowy program upside down, by ordering law enforcement to disclose details surrounding the use of the Stingrays.In his decision, New York Judge Patrick H. NeMoyer described a 2012 case between the local Sheriff’s office and the FBI, wherein a court order revealed the FBI would rather drop criminal charges than disclose “any information concerning the cell site simulator or its use.” The revelation brings into question just how many unsuspecting cell phone users are being recorded? What exactly does law enforcement do with the thousands of cell phone data they collect? In the court testimony earlier this year

in Baltimore, Detective Emmanuel Cabreja told a judge he employed the Stingray device more than 4,300 times since 2007, therefore acknowledging the program has been operating under the radar for at least eight years. The Maryland State Police commander explained to state lawmakers the order to remain mum about the Stingray box came from Homeland Security. Agencies including the FBI, Department of Homeland Security (DHS), and local law enforcement have successfully invoked nondisclosure agreements as a measure to keep Stingray information hush-hush. “In Baltimore, they’ve been using this since 2007, and it’s only been in the last several months that defense attorneys have learned enough to start asking questions,” American Civil Liberties Union (ACLU) attorney Nate Wessler said. “Our entire judicial system and constitution is set up to avoid a ‘just trust us‘ system where the use of invasive surveillance gear is secret.” Defense attorney Joshua Insley told Homeland Security News Wire, “That Baltimore police obtain court orders under Maryland’s ‘pen register’ statute, which allows police to capture only the numbers that are called or received by a phone, not the metadata and location information Stingrays collect. They’re basically duping these judges into signing authorizations to use Stingrays.” Once the court ordered Cabreja to produce a copy of the 2011 nondisclosure agreement the attorney Insley asked the detective: “Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” Cabreja said, “Yes.” But when the detective was faced with bringing the suitcase-sized portable device into the courtroom, the court decided to negotiate with the defendants and offered them sweet plea deal.

According to the ACLU, when the Stingray becomes the focus, “defense attorneys are being able to get really good deals for their clients, because the FBI is so insistent on hiding all of these details. There are likely going to be a lot of defense attorneys in Baltimore who may have an opportunity to raise these issues. They are on notice now that their clients may have some arguments to make in these cases.” The potential for future abuses will grow exponentially as a greater number of law enforcement agencies employ the high-tech machinery. “When this technology disseminates down to local government and local police, there are not the same accountability mechanisms in place. You can see incredible potential for abuses,” American Civil Liberties Union lawyer Catherine Crump pointed out.

It remains unclear what law enforcement agencies do with the collected data and how long they keep it. Like the case in Baltimore, local New York law enforcement officials employed the Stingray surveillance device without defendants’ knowledge or warrants authorized by judges. “These records confirm some of the very worst fears about local law enforcement’s use of this expensive and intrusive surveillance equipment,” said NYCLU Staff Attorney Mariko Hirose. “Not only did the Sheriff’s Office (in NY) promise the FBI breathtaking secrecy to keep information about stingrays as hidden as possible, it implemented almost no privacy protections for the Erie County residents it is sworn to protect and serve.”The NYACLU report discovered:

  • The Sheriff’s Office used stingrays at least 47 times between May 1, 2010 and October 3, 2014, including assisting other law enforcement departments like the Monroe County Sheriff’s Office.
  • The office apparently obtained a court order prior to using the device only once in those 47 circumstances, contradicting the sheriff’s statements to a local reporter and the legislature that this device is being used subject to “judicial review.” In the one case a court order was obtained, in October 2014, the sheriff did not obtain a warrant but a lower level court order called a “pen register” order.
  • Its confidentiality agreement with the FBI requires the Sheriff’s Office to maintain almost total secrecy over stingray records, including in court filings and when responding to court orders, unless the Sheriff’s Office receives the written consent of the FBI.

• Its confidentiality agreement with the FBI also instructs the Sheriff’s Office that the FBI may request it to dismiss criminal prosecutions rather than risk compromising the secrecy of how stingrays are used. The NYACLU concluded that, “Stingrays are an advanced surveillance technology that can sweep up very private information, including information on innocent people. If the FBI can command the Sheriff’s Office to dismiss criminal cases to protect its secret stingrays, it is not clear how the $350,000 we are spending on stingray equipment is keeping the people of Buffalo safer.”

The full article can be found here.

If you are charged with a San Diego DUI or other Criminal offense, you need to call our firm immediately. We are available to take action on your case today. Please email or call us at 858-751-4384 or email me at [email protected] to schedule a free consultation. The key is to be proactive.

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