A complaint filed at the Federal Communications Commission could make it difficult for law enforcement to use cell-site simulators, also known as Stingrays, to conduct widespread cellphone surveillance.
The complaint filed in August alleges the devices, designed to masquerade as cell towers and connect to cellphones in range to collect call, text, photo, location and other data, interfere with emergency calls and are racially discriminatory.
Civil rights groups including New America Foundation’s Open Technology Institute, Center for Media Justice and Color of Change filed the complaint in response to Baltimore police’s admission in court they’ve used Stingrays for years without first obtaining search warrants, as a Maryland court later deemed necessary.
Laura Moy, director of the Georgetown Law Center on Privacy and Technology, filed the complaint on behalf of the groups, which describes the use of Stingrays as a breach of the Communications Act.
“The basis of our complaint is that police departments operating these devices are operating them without the appropriate license to use the licensed spectrum over which the device transmits,” Moy said during a panel discussion Wednesday.
Using the unauthorized device on airwaves licensed by the FCC to a wireless carrier technically gives the agency authority to take enforcement action against police.
“As far as we know,” Moy continued, “there are no police departments that are operating these devices, these fake cellphone towers, who have licenses to transmit in that licensed spectrum that has already been licensed to phone carriers.”
Stingrays, originally developed for counterterrorism purposes, have seen increasing use across the country for routine police work with little oversight. Departments must enter into non-disclosure agreements with the FBI in order to obtain Stingrays and the federal government routinely evades testifying on their operation and use as a matter of policy, citing national security. Federal officials have forced states to drop criminal cases to avoid disclosing Stingray-related evidence and in one case ordered U.S. Marshals to physically seize such documents before they could go to court.
The FCC complaint accuses police using Stingrays of violating two provisions of the Communications Act by operating on licensed spectrum without authorization and willfully interfering with the operation of a network.
Though the nature of the secrecy surrounding the devices makes the level of interference hard to determine, Moy said police testimony in court has revealed Stingrays can cause calls to drop, make it impossible to complete calls and drain batteries faster.
Moy said disproportionate policing in communities of color like Baltimore, where the complaint is based, means “any harms caused by the use of the devices are occurring disproportionately in communities of color.”
The complaint is sitting in “limbo” as a result of the presidential transition, according to Moy. Complaint filers had meetings at various offices of the agency last year, and though Moy isn’t sure of the complaint’s future, she’s hopeful the agency’s new Republican leadership may be inclined to take action.
“We’re hopeful though that the new FCC will take a hard look at this issue, particularly given some of the Republican commissioners’ statements on their interest in privacy and security,” Moy said.
She added the information phone carriers collect from subscribers is also protected under the Communications Act. Rules regarding the protection of that information, known as Customer Proprietary Network Information (CPNI) rules, were part of the basis for new rules passed by the FCC in October to limit internet provider collection of subscriber data without customer permission.
Both Republican commissioners on the FCC voted against those rules based on the notion they unfairly benefit the content provider side of the market, which has no such restrictions. Civil rights groups like those who filed the complaint support the rules.
Republican commissioners have also indicated a desire to leave areas like security in cyber to agencies with a more clearly defined role, and the Trump administration is reportedly looking to steer the FCC largely away from consumer protection. It’s unclear how Republicans, in their new majority at the FCC, will look upon the complaint.
House Oversight Committee Chairman Jason Chaffetz reintroduced two bills Wednesday to limit police use of Stingrays by requiring law enforcement to obtain warrants to use the devices and geolocation data collected by them in secret.
