Brian Macaulay, The Fix
Waking Times

Police have new tech to help them predict and enforce the law better than ever—but that also means enforcing the racial bias of drug arrests faster than ever, too.

“Just because you’re paranoid doesn’t mean they aren’t after you,” wrote Joseph Heller in 1961’s Catch-22. At the time, this comic statement wasn’t necessarily something ordinary people could relate to. Paranoia about powerful conspirators using broad machinations to trap a person belonged in fiction, or to the mentally ill, or—to whatever fraction of the population used drugs like marijuana or speed.

In the post 9/11 age, paranoia has ascended from a vagrant muttering on the sidewalk to a respected participant in any discussion about national security or law enforcement policy. Warrantless surveillance and searches by the government have intermittently dominated the discourse since former President Bush and Congress began formulating strategies on September 12, 2001. Recent revelations about the National Security Agency by the whistleblower Edward Snowden have made clear that the government now has the capability to learn personal details about any American at any time through the collection of metadata—whom they call, where their cell phones go, and more.

In effect, a phone call had the constitutional privacy protections of a person’s statements shouted out a window.

The government has offered assurances that both the purported capability and use of such technology is nowhere near the hyperbolic claims of those like Snowden—former NSA director Michael Hayden has been especially vocal on this point—and maintained that its use is essential in combating terrorism and other threats to national security. But while the use of advanced surveillance methods and their threat to ordinary people are being kicked around and debated as national policy issues, high tech has bled from the shadowy world of spies into the hands of local law enforcement, and in America, local law enforcement is a cornerstone in the (recently retitled, or more appropriately detitled, by the current administration) war on drugs. And like many controversies that have arisen over that war in the last four decades, new spying technology might put civil liberties in the crosshairs.

Several police departments across the country are now believed to be using a device called “Stingray,” a high tech tool manufactured by Harris Corporation, a telecommunications company that contracts extensively with the government and military. Stingray mimics cell phone towers to learn precision locational and identifying details about individual phones. “It’s like the kids’ game, Marco Polo,” says Nathan Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, “The device is basically saying, ‘Hey I’m an AT&T tower,’ or ‘I’m a Sprint tower,’ and then all the phones on that network report back and say, ‘Oh, hi tower. Here I am.’”

Wessler’s work centers on law enforcement’s use of technology in criminal investigations, which heavily includes alleged drug crimes, an area which police have long contended they need more and stricter enforcement to do battle with. Using Stingray’s method, the police are informed about all of the devices on a network within range, and when they find the particular phone they’re looking for they can identify the location of its owner—their suspect.

Like many other weapons and tactics coming into use in local law enforcement, Stingray’s popularity is due in large part to money from the federal government. The Homeland Security Grant Program provides resources to local police for equipment, weapons, and training all in the mission of preparing the country for response to major attacks from the bottom up. “Invariably, state and local police departments end up using this technology for whatever local criminal investigations they’re involved in,” Wessler says. “There is a trivial amount of Homeland Security work most local law enforcement have, so in all of their investigations of drug crimes, as well as in things like robberies or homicides, they use these devices.”

Stingray puts out a dragnet that could be draped across a public street, sports arena, or, most importantly to defenders of privacy rights, a private home. Police use a variety of tactics to surveil or discover the location of suspects, such as wiretaps, but the application of Stingray has been marked by one vital difference—law enforcement’s belief that they don’t need a warrant to use it.

America has long required approved, specific warrants in investigations where the police seek to violate a person’s privacy, especially where he or she dwells. “Throughout Anglo-American history, the home has had a special place under the law,” says Wessler. The Fourth Amendment to the US Constitution reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. This prohibition against reckless and unjust searches is rooted in the experience of those living in the British Colonial period. While English Common Law had established in 1604 that the King did not have unbridled access to private homes, the rules were different in the colonies. Using general “writs of assistance,” the British authorities obtained permission from magistrates to conduct broad searches of a person’s property at their own discretion.

Such writs were good until six months after the death of the king in power at the time they were issued, and effectively subjected their target to whatever degree of harassment suited the authorities’ goals, such as sweeping attempts in Boston to stop smugglers from avoiding taxes. The framers of the constitution did not want such powers in the hands of federal law enforcement, and with later rulings and the passage of the 14th Amendment, this protection was expanded to protect citizens from such acts by local law enforcement. Unfortunately for the ACLU and the Americans targeted by new techniques, while the founders may have foreseen the dangers of boundless searches of the home, they didn’t see Stingray—with its ability to reach right inside—coming.

“We were able to get a transcript unsealed in Tallahassee, Florida,” explains Wessler, “where a police detective described how he used a Stingray device first to locate the apartment complex where a suspect’s phone was located, then he switched to a handheld Stingray and walked up to every—as he described it—literally every window and door in the complex until he pinpointed exactly which apartment, potentially which room, the phone was in.” Was it a terrorist the detective sought? No. A high level drug trafficker? Not even. In this instance, Stingray was deployed to locate a suspect in a sexual assault and robbery. In that case, the police had not sought any warrant, and sought to explain this, and their subsequent refusal to reveal to the defendant’s lawyer how they had located him, by citing a nondisclosure agreement they had signed with the device’s manufacturer.

In February, the ACLU filed a motion for public access to sealed records in Florida state court, as well as requests for information to 30 local police and sheriffs’ departments across that state about their acquisition and use of Stingray devices. In June, as the ACLU came extremely close to finally viewing the Stingray records of Sarasota police, that department was saved by an assist by its aforementioned benefactor—the federal government. US Marshals swooped in and seized the records, moving them to an undisclosed location hundreds of miles away. Their pretext? The Marshals Service asserted a right to the docs because they had deputized a relevant Sarasota detective. Citing a lack of authority over a federal agency, a Florida judge then dismissed the ACLU’s request.

What level and quality of discretion do local police use in the application of technology that blurs the lines between surveillance and searches, as well as that between legal methods and constitutional protections? Evidence of police attitudes toward these issues, and their ability to police themselvesmight be seen in their handling of more traditional, low tech conflicts over civil rights in the drug war.

According to Jason Williamson, a colleague of Wessler’s and attorney for the ACLU’s Criminal Law Reform Project, decades old problems of unconstitutional police tactics show no sign of going away. Chief among these is the long criticized implication of racial bias in drug arrests. “No matter where you look, in any state in the country, across counties, rural and urban, big cities and small towns—you see the same levels of disturbing disparities,” Williamson says. Last summer the project published a report titled The War on Marijuana in Black and White, which presented startling findings about how police enforce the nation’s prohibition on the drug. According to the report, while their use of the drug occurs in the same proportions, black Americans are almost four times more likely to be arrested than whites. “This is true even in jurisdictions where the number of arrests may be going down,” says Williamson, “the disparities remain the same.” Williamson stands behind the data’s strength because of the drug studied, pointing out that while racial bias likely exists in the enforcement of other low level drug crimes, “[Marijuana] is the one drug where we have solid data that whites are using at the same rate.”

Where does new technology fit in? It has served only to highlight the racial bias problem, Williams says. “There’s a lot of talk around the country by police departments about predictive policing… …they believe they are able to do this because they have much more sophisticated technology to track where policing is happening and crimes are being committed.” This process creates data that shows in hard numbers what those like Williams already know—police focus is disproportionately in neighborhoods of color. Williams believes this can aid those seeking reform through litigation, and points to the case of Floyd, et al v. City of New York, wherein plaintiffs used available data to demonstrate that 90% of those targeted by the city’s stop-and-frisk program (which subjects citizens in public to physical searches, when deemed suspicious by police) were black or Latino.

How will the law ultimately handle the emergence of new technology and the eagerness of police to use it? The United States Supreme Court has not always shown deference to defendants’ constitutional rights where new innovations were concerned, particularly in drug enforcement. In the famous 1928 case of Olmstead v. United States, during the nation’s first drug war (that on alcohol), the court took on the growing ubiquity of the telephone, and law enforcement’s right to tap it. In that case, the court held that wiretapping did not violate bootlegger Roy Olmstead’s Fourth Amendment rights because listening to a telephone call involved only hearing, and no entry into a home or office. In effect, a phone call had the constitutional privacy protections of a person’s statements shouted out a window. The court didn’t change its mind on the issue for nearly 40 years, finally reversing the precedent in 1967.

However, a few rulings in recent years may indicate that the current court seeks to put a firm leash on police using the wonders of the digital age. In Kyllo v. United States (2001), the justices ruled that the use of warrantless thermal imaging to discover an unusual amount of heat emitting from a suspect’s home and thereby discover a cache of indoor marijuana plants violated his right to privacy. In United States v. Jones (2012), it was decided that attaching a GPS device to a suspect’s car to track his movements also required a warrant. In June, the court went so far as to rule that in an arrest, the police cannot search a suspect’s cell phone.

Why does using a Stingray to peer into a home through the phones contained therein differ from using thermal imaging? Why does using the device to collect a phone’s location vary from using a GPS device to track a person’s car? Under the law, technicalities are everything. If Stingrays, or any other existing or emerging technologies don’t measure up constitutionally, the courts will need to say so, specifically.

Until then, engineers will keep developing, police will keep up the questionable exploring, and Americans will remain subject to paranoia’s ominous—or reasonable—appeal.

About the Author

Brian Macaulay is a regular contributor to The Fix. He last wrote about the celebrity distortion of rehab reality.

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