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New York Police Are Using Covert Cellphone Trackers, Civil Liberties Group Says

Covert cellphone tracking devices, which have proliferated in law enforcement agencies across the nation, have been used by the New York Police Department on at least 1,000 occasions since 2008 in the course of investigating rapes, murders and other crimes as well as searching for missing people, according to documents obtained by the New York Civil Liberties Union.

The documents, which the civil liberties group released publicly on Thursday morning, offers the first glimpse into how the nation's largest municipal police department has used the surveillance devices, known as StingRays, as frequently as 200 times a year, while avoiding any public debate or any major courtroom review of the constitutionality of what it was doing.

"The N.Y.P.D. has been using StingRays since 2008 and yet this is the first time that the public is learning this information," said Mariko Hirose, the civil liberties union lawyer who received the documents in response to a Freedom of Information Law request. "When local law enforcement agencies acquire invasive surveillance technologies like StingRays, communities should have the right to know basic information about what kind of surveillance powers those technologies give to the government and how those devices will be used."

The portable devices — generically known as cell-site simulators — essentially trick cellphones by acting like a cellphone tower and, thus, intercepting the phone's signal. That allows detectives and agents to home in on the cellphone's location, providing a powerful tool to track down criminals and find missing people. But the devices also scoop up information from many other phones in the area. And some cell-site simulators can uncover far more information than just a phone's location, including text messages, calls, emails and more.

The devices have been used by police departments across the nation, even as their new owners went to striking lengths to keep them secret. Law enforcement agencies frequently pledged to Harris Corporation, which manufactures many of the devices, or even directly to the Federal Bureau of Investigation that they would not divulge any details about the devices. The New York Police Department signed one such nondisclosure agreement with Harris Corporation in January 2011, which was turned over to the New York Civil Liberties Union.

Such secrecy, the F.B.I. had once insisted, was necessary to ensure that criminals and terrorists did not learn to circumvent the devices. Yet in September, the Justice Department changed course and publicly announced a set of guidelines that would govern how federal agents could use the devices. Under the new guidelines, federal agents cannot use the devices to intercept emails or texts and other data. And most significantly, federal agents are now required, except during exigencies, to obtain a warrant from a judge before using cell-site simulators.

That is a more restrictive set of rules than appear to apply to the New York Police Department's use of the devices. The Police Department informed the civil liberties group that it had no written policies governing the use of StingRays. But the Police Department explained that its practice when using the devices was to go to a judge and obtain an order under a specific provision of state law that for generations had enabled the police to collect call data related to a specific phone. The standard for obtaining such pen register orders, as the orders are generally called, is lower than the probable cause standard required for a warrant that now applies to the F.B.I.

And civil rights lawyers also question whether these court orders — which specifically pertain to devices that can identify incoming and outgoing phone numbers on a specific phone line — provide any legal authority to intercept a cellphone's signals and use it to track location.

"The text of New York's pen register law does not apply to StingRays, and for good reason — that law was intended only to authorize the use of the primitive devices of the past that captured outgoing and incoming phone numbers on a landline," Ms. Hirose, the civil liberties union lawyer, said. "We're now living in a different technological reality."

The civil liberties union obtained brief details on more than 1,000 cases involving cell-site simulators, dating to 2008. They generally involve the most serious offenses: homicide, rape, nonfatal shootings, robberies and other violent crimes. But there are a few lesser crimes thrown in, including identity theft, larceny and money laundering. In one 2015 case, the Bronx Homicide Squad appeared to use the device to track down a witness, rather than a suspect. And in a 2011 assault case, it appears that detectives used the device to track a phone, only to realize they were tracking the wrong number.

Usually, the use of the cell-site simulator ended with an arrest or a missing person being discovered. But in slightly less than a quarter of cases in early 2015, the phone could not be located.

The data which the New York Police Department turned over refers to "over the air intercepts" from 2008 to May 15, 2015. But it is not entirely clear whether the slightly more than 1,000 cases included every single instance the devices were deployed, or only those instances in which the device succeeded in latching onto the target's signal.

[Source: By Joseph Goldstein, The New York Times, 11Feb16]

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small logoThis document has been published on 12Feb16 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.