by Eric Neville
As society is ignorant of its technology, we steer our democracy blindly. As we willfully conceal information from ourselves, we put blinders on society. Yet we need to craft our public policy to address the perpetually moving target that is technology. Without encompassing transparency and accountability legislation for technology used in law enforcement, we will continue to see legislators outpaced, judges kept in the dark, and a public willfully deceived.
For a case example, I offer the Stingray cell site simulator equipment and its corruption of the legal process, and I reference the issues addressed in a letter from twelve United States Senators.[1a][1b] I must immediately point out that even the name of this technology may be disputed, having been referred to even in courts by various “inscrutable euphemisms“, showing from the first step impedance to the proper understanding which is necessary for just reckoning.[1c]
This Stingray equipment, among its other capabilities, hijacks the signalling of mobile phones by overpowering and/or jamming cell tower radio waves, forcing up to thousands of mobile phones within about one mile to drop their connection to cell service and connect instead to the equipment.[2a][2b][2c][2d][2e]
The fundamental issue is that technology that cannot be inspected for performance by the body politic cannot be assessed as to legal propriety, including not least civil rights. The stakes are only multiplied in an era of burgeoning automation, technology which carries its own agency, thus becoming an inherently unknown quantity. The agency of automation is so powerful that, as anyone who has used a computer or smart phone can attest, at any time automated equipment can unpredictably deviate in behavior from even the intent of designers, let alone the understanding of users. Moreover, with artificial intelligence looming on the horizon, automation’s potential impact only expands. The quantum leap in power that the unmanned agency of automation already presents means that secret technology is secret policing.
Note also that the Senators’ letter derives from concerns first raised by common citizens, and that — disappointingly — no one in law enforcement came forward to raise issue with the equipment’s violations of laws or rights. Apparently, even after years of use, no one in law enforcement sufficiently understood the actual performance of the equipment, that performance’s interaction with laws and rights, and the consequences to a free society. This proves that the body politic must have the access to scrutinize equipment considered for use in law enforcement, and the opportunity to assess collectively the actual performance and its ramifications on society, not least in re laws and civil rights.
Hundreds of articles have been published describing the physical militarization of police agencies.[5a] The employment of this signal hijacking equipment, which is still actively deployed secret military technology, apparently reflects the same cultural approach, applied in the information sphere, including summarily viewing the public as “adversaries“.[5b][5c][5d]
The fact that key evidence has been dropped and criminal cases have been reduced and apparently even dropped entirely to avoid cross examination and to obscure the useand even the secrecy itself of signal hijacking equipment is proof that the public welfare has not been the first priority in adoption of such equipment. In fact, technology secrecy is fundamentally incompatible with justice, because as Judge David Campbell noted in United States v. Rigmaiden, “How can we litigate in this case whether this technology that was used in this case violates the Fourth Amendment without knowing precisely what it can do?” And how can we know precisely what automated equipment, like a given Stingray model, can really do if we — the people — cannot inspect it and its actual operation? [6a][6b][6c][6d][6e][6f][6g][
In fact, the use of Stingrays has been racially biased in violation of law, systematically suborned officers of the law by demanding concealment of evidence, undermined the separation of powers by excluding the judicial and legislative branches via so-called “parallel construction“, and in at least one case even lead to an armed confrontation of an innocent person in their home.[7a][7b][7c][7d][7e]
This clouded history betrays the inherent conflict in deploying secret technology for democratic governance. Only after many years of offenses against the American people, yet based on insights from that same American people, have underlying violations of law and rights and public trust been exposed, showing that technology cannot be properly understood and vetted for fitness in upholding the law if it cannot be publicly assessed.
In further support of this observation, note that we live in an era in which the daily business of government is vastly larger than any one person can comprehend. The still-expanding organizational intricacy of humanity is taking on the scale of complexity of systems such as the human body. Although we all have lungs, a liver, and a blood system and rely on them to survive, understanding them is hardly a given, even though we own them. We face a parallel challenge governmentally, in that understanding the structure and impacts of our systems built of humans is hardly a given, even though we own them: regulatory capture, mass incarceration, carbon emissions, etc. Just because we rely on a system built of humans, or even are ourselves part of such a system, does not perforce grant us understanding of that system. In our own way, we are like a formicary, which through its emergent properties effects much more collectively than any individual ant comprehends.[9a][9b][9c] As humans, consciously comprehensive coordination is our opportunity, and our responsibility. The best possible government requires the best possible understanding of government, which requires all hands on deck. And that absolutely includes public scrutiny of technology — not least automated technology, which compounds the complexity and agency of systems, and thus compounds our challenge in tracking the actions and impacts of those systems.
Even the corpus of our federal statues alone, a human product that is not automated and is but a fraction of total American legal constructs, exceeds in bulk and complexity the comprehension of any person or even subgroup.[10a][10b][10c][10d][
The normalization of violating the law within a siloed culture of law enforcement itself illuminates how expectations of secrecy sabotage hallowed American values, such as rule of law, that are necessary to realize justice. That government has been systematically violating its own law is proof positive — if any new proof were necessary — that our government is still dependent on its originator, the people, for legal and moral oversight.
Additional examples such as Tor exploits, Stuxnet, and Hemisphere further illustrate the legal liabilities of secrecy in technology.[12a][12b][12c]
Essentially, because the nature of humanity and its laws exceeds the comprehension of any individual or subgroup — and moreover because automation has transformed technology into a protean actor — secrecy in technology applied to law enforcement inherently subverts the collective involvement necessary for the intellectual coherence that undergirds legality itself.
We need binding disclosure of all technology deployed in the sphere of justice.
An earlier version was previously released as an open letter to the President
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[1a] Wikipedia. “Stingray phone tracker”. https://en.wikipedia.org/wiki/Stingray_phone_tracker
[1b] Franken, Al, et al. 2016-10-06. Letter to Tom Wheeler. https://assets.documentcloud. org/documents/3124334/Senate-Letter-to-FCC-on-Stingray-Devices.pdf
[1c] Woolf, Nicky. 2015-09-04. “2,000 cases may be overturned because police used secret Stingray surveillance”. The Guardian. https://www.theguardian.com/us-news/2015/sep/04/baltimore-cases-overturned-police-secret-stingray- surveillance
[2a] Daniel, Larry E. “Cellular Analysis for Legal Professionals”. Guardian Digital Forensics. https://law.duke.edu/sites/
default/files/ccjpr/cellular.pdf
[2b] Stone, Jeff. 2015-03-02. “StingRay Phone Tracker Knocks Out Cell Networks, FBI Reveals”. International
Business Times. http://www.ibtimes.com/stingray-phone-tracker-knocks-out-cell-networks-fbi-reveals-1832598
[2c] “3G-GSM Tactical Interception & Target Location”. Gamma Group. https://info.publicintelligence.net/Gamma- GSM.pdf
[2d] Kelly, John. 2013-12-08. “Cellphone data spying: It’s not just the NSA”. USA Today. http://www.usatoday.com/story/news/nation/2013/12/08/cellphone-data-spying-nsa-police/3902809/
[2e] Gallagher, Ryan. 2013-09-25. “Meet the machines that steal your phone’s data”. Ars Technica. http://arstechnica.com/tech-policy/2013/09/meet-the-machines-that-steal-your-phones-data/
[2f] Israel, Tamir, et al. 2016. “Gone Opaque? An Analysis of Hypothetical IMSI Catcher Overuse in Canada”. Telecom
Transparency Project, et al. https://citizenlab.org/wp-content/uploads/2016/09/20160818-Report-Gone_Opaque.pdf
[2g] The Secret Surveillance Catalogue. “Stingray I/II”. The Intercept. https://theintercept.com/surveillance-catalogue/
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[2h] Zetter, Kim. 2016-05-06. “Hacker Lexicon: Stingrays, the Spy Tool the Government Tried, and Failed, to Hide”.
Wired. https://www.wired.com/2016/05/hacker-lexicon-stingrays-spy-tool-government-tried-failed-hide/
[2i] Dabrowski, Adrian, et el. 2014. “IMSI-Catch Me If You Can: IMSI-Catcher-Catchers”. https://www.sba-research.org/
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[2j] “Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology”. United States Department of
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[2n] Barrett, Brian. 2016-08-16. “The Baltimore PD’s Race Bias Extends to High-Tech Spying, Too”. Wired. https://www.wired.com/2016/08/baltimore-pds-race-bias-extends-high-tech-spying/
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[2s] Weiser, Benjamin. 2016-07-12. “D.E.A. Needed Warrant to Track Suspect’s Phone, Judge Says”. New York
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[2t] Zetter, Kim. 2015-03-01. “Feds Admit Stingrays Can Disrupt Cell Service of Bystanders”. Wired. https://www.wired.com/2015/03/feds-admit-stingrays-can-disrupt-cell-service-bystanders/
[2u] Freeze, Colin. 2016-04-18. “RCMP listening device capable of knocking out 911 calls, memo reveals”. Globe and Mail. http://www.theglobeandmail.com/news/national/rcmp-listening-tool-capable-of-knocking-out-911-calls-memo- reveals/article29672075/
[2v] Winston, Ali. 2015-08-07. “Chicago and Los Angeles have used ‘dirt box’ surveillance for a decade”. Reveal. https://www.revealnews.org/article/chicago-and-los-angeles-have-used-dirt-box-surveillance-for-a-decade/
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[2x] Baker, Karl. 2016-02-20. “Delaware police can covertly collect cellphone data”. The News Journal. http://www.delawareonline.com/story/news/2016/02/20/delaware-police-can-covertly-collect-cellphone-data/80470880/
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[5a] Google news search for terms: united states police militarization. https://www.google.com/search?sclient=psy- ab&hl=en&gl=us&authuser=0&tbm=nws&btnG=Search&q=united+states+police+militarization
[5b] Fenton, Justin. 2014-11-17. “Judge threatens detective with contempt for declining to reveal cellphone tracking methods”. Baltimore Sun. http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-officer- contempt-20141117-story.html
[5c] Heath, Brad. 2016-04-20. “FBI warned agents not to share tech secrets with prosecutors”. USA Today. http://www.usatoday.com/story/news/2016/04/20/fbi-memos-surveillance-secrecy/83280968/
[5d] The Economist. 2016-01-30. “The StingRay’s tale”. http://www.economist.com/news/united-states/21689244- courts-take-aim-technology-beloved-countrys-police-forces-secretive
[6a] Farivar, Cyrus. 2014-11-18. “Prosecutors drop key evidence at trial to avoid explaining “stingray” use”. Ars Technica. http://arstechnica.com/tech-policy/2014/11/prosecutors-drop-key-evidence-at-trial-to-avoid-explaining-stingray- use/
[6b] Nakashima, Ellen. 2015-02-22. “Secrecy around police surveillance equipment proves a case’s undoing”. Washington Post. https://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance- equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html
[6c] Patrick, Robert. 2015-04-19. “Controversial secret phone tracker figured in dropped St. Louis case”. St. Louis Post- Dispatch. http://www.stltoday.com/news/local/crime-and-courts/controversial-secret-phone-tracker-figured-in-dropped-st- louis-case/article_fbb82630-aa7f-5200-b221-a7f90252b2d0.html
[6d] Heath, Brad. 2015-08-24. “Police secretly track cellphones to solve routine crimes”. USA Today. http://www.usatoday.com/story/news/2015/08/23/baltimore-police-stingray-cell-surveillance/31994181/
[6e] Farivar, Cyrus. 2015-04-29. “Robbery suspect pulls guilty plea after stingray disclosure, case dropped”. Ars Technica. http://arstechnica.com/tech-policy/2015/04/alleged-getaway-driver-challenges-stingray-use-robbery-case- dropped/
[6f] Zetter, Kim. 2014-06-19. “Emails Show Feds Asking Florida Cops to Deceive Judges”. Wired. https://www.wired.com/2014/06/feds-told-cops-to-deceive-courts-about-stingray/
[6g] Wessler, Nathan Freed. 2016-01-25. “New Evidence Shows Milwaukee Police Hide Stingray Usage From Courtand Defense”. American Civil Liberties Union. https://www.aclu.org/blog/free-future/new-evidence-shows-milwaukee- police-hide-stingray-usage-courts-and-defense
[6h] Cameron, Dell, et al. 2016-10-07. “Police documents reveal how law enforcement keep Stingray use secret”. Daily
Dot. http://www.dailydot.com/layer8/stingray-surveillance-doj-warrant-north-carolina/
[6i] Pagliery, Jose. 2015-03-18. “The FBI has a secret device to locate criminal suspects, but it would apparently rather let suspects go free than reveal in court any details of the high tech tracker”. Cable News Network. http://money.cnn.com/2015/03/18/technology/security/police-stingray-phone-tracker/
[6j] Greenemeier, Larry. 2015-06-25. “What Is the Big Secret Surrounding Stingray Surveillance?”. Scientific American. https://www.scientificamerican.com/article/what-is-the-big-secret-surrounding-stingray-surveillance/
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[10k] Zetter, Kim. 2014-03-03. “Florida Cops’ Secret Weapon: Warrantless Cellphone Tracking”. Wired. https://www.wired.com/2014/03/stingray/
[10l] Fenton, Justin. 2015-04-09. “Baltimore Police used secret technology to track cellphones in thousands of cases”.
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[10p] Zetter, Kim. 2016-01-27. “California Police Used Stingrays in Planes to Spy on Phones”. Wired. https://www.wired.com/2016/01/california-police-used-stingrays-in-planes-to-spy-on-phones/
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