February 11, 2016 — The NYPD has confirmed that it owns and operates Stingrays—controversial surveillance devices that spy on cell phones nearby and that can be used to track location—the New York Civil Liberties Union announced today. In response to an NYCLU FOIL request, the NYPD disclosed it used Stingrays nearly 1,016 times between 2008 and May of 2015 without a written policy and following a practice of obtaining only lower-level court orders rather than warrants. This is the first time the extent of the use of Stingrays by the NYPD has been made public.
“If carrying a cell phone means being exposed to military grade surveillance equipment, then the privacy of nearly all New Yorkers is at risk,” said Donna Lieberman, executive director of the NYCLU. “Considering the NYPD’s troubling history of surveilling innocent people, it must at the very least establish strict privacy policies and obtain warrants prior to using intrusive equipment like Stingrays that can track people’s cell phones.”
Stingrays are surveillance devices that allow authorities to spy on cell phones in the area by mimicking a cell tower, and allow the police to pinpoint a person’s location and, in some configurations, collect the phone numbers that a person has been texting and calling and intercept the contents of communications. Stingrays also sweep up information from nearby bystander cell phones even when used to target specific phones. Authorities are able to conduct this surveillance without the involvement of cell phone companies; as the NYPD confirmed in its latest response to the FOIL request, it has no communications between the NYPD and wireless service providers regarding the use of Stingrays in any particular investigation or about the use of the technology in general.
The NYPD also disclosed that it has no written policy for the use of Stingrays but that, except in emergencies, its practice is to obtain a “pen register order” – a court order that is not as protective of privacy as a warrant – prior to using the device. The legal standard for warrants is probable cause, but in order to obtain a pen register, the NYPD needs only to establish that the information is “relevant to an ongoing criminal investigation” of a crime that it reasonably suspects has been, is being, or is about to be committed, a lower legal barrier that does not adequately protect the privacy of New Yorkers from these sophisticated surveillance devices. Last year the Department of Justice issued a policy abandoning its prior practice of relying on pen register orders and has begun obtaining warrants prior to using Stingrays except in certain exceptional or emergency circumstances.
The NYCLU received the first round of information regarding the NYPD’s use of Stingrays in November of 2015. Following an appeal of its FOIL request, the NYCLU received a further response last Monday night.
The NYCLU’s FOIL request to the NYPD is part of its advocacy to lift the shroud of secrecy surrounding police departments’ use of surveillance devices, such as Stingrays and X-Ray vans, that were developed for military purposes but are now deployed in New York neighborhoods. Last April, the NYCLU released records showing the Erie County Sheriff’s Office had used Stingrays 47 times in the last four years and only once indicated obtaining a pen register order before doing so. The documents appeared to contradict the sheriff’s statements to a local reporter and the legislature that Stingrays were being used subject to “judicial review.” In May, NYCLU FOIL requests also revealed that the New York State Police spent hundreds of thousands of taxpayer dollars on Stingrays and related equipment. These findings led the NYCLU to distribute a legal memorandum to certain New York law enforcement agencies arguing that the state’s broad eavesdropping law requires that these agencies get a warrant before deploying Stingrays.
“New Yorkers have very real concerns about the NYPD’s adoption of intrusive surveillance technology,” said NYCLU Senior Staff Attorney Mariko Hirose. “The NYPD should at minimum obtain warrants before using Stingrays to protect the privacy of innocent people.”