Cell-site simulator devices – also known as IMSI catchers or “Stingrays”1 – are powerful surveillance devices developed by the military.
Stingray technology simulates the operations of a cell phone tower, capturing unique identifiers of nearby cell phones: telephone numbers (mobile identification number); identification number assigned to a phone by the manufacturer (electronic serial number); and cell phone location information.
Some types of Stingray technology also have the capacity to capture the phone numbers called from a particular cell phone, and some can even intercept the content of text messages and telephone conversations.
Armed with this brief-case sized device, law enforcement can locate any person who carries a cell phone, whether inside a home, a place of worship, a doctor’s office – virtually anywhere – and track the person’s movements. Moreover, in its operation the device necessarily captures information from cell phones of third-party bystanders who are not targets of any investigation.
Given that 90 percent of American adults now own a cell phone,2 Stingrays pose an unprecedented threat to New Yorkers’ right to be free from unwarranted government surveillance.
The NYCLU strongly supports A.8055, which would require law enforcement to obtain a warrant issued by a court when using this surveillance technology.
It has recently been reported that law enforcement agencies in New York – including the state police and the Erie County Sheriff’s Office – have been using Stingray technology without any policy requiring judicial oversight, under a broad secrecy agreement with the FBI. This type of law enforcement activity requires clear, mandatory statewide regulation that protects against the violation of personal privacy.
Because of their broad, indiscriminate reach, it is arguable whether Stingrays are ever actually appropriate for ordinary use by law enforcement outside the military context; however, the proposed bill (A.8055) takes the right approach to the regulation of this technology in cases where there is a justifiable use.
The proposed legislation would make the use of Stingray technology subject to Art. 700 of the state Criminal Procedure Law – which requires law enforcement to demonstrate probable cause of unlawful activity before a surveillance warrant will issue.3 This section of law also contains procedures for minimizing intrusions on privacy when using surveillance technology.
These regulatory safeguards are necessary to protect the public from the powerfully invasive capabilities of Stingrays and to satisfy the bedrock constitutional principle that holds that law enforcement must obtain a warrant based on probable cause when intruding upon an individual’s reasonable expectation of privacy – including expectation of privacy in their home,4 in their patterns of travel or whereabouts,5 and in the data stored on cell phones.6
A clear legislative directive that law enforcement must obtain a warrant prior to using Stingray technology would provide New Yorkers with crucial safeguards of personal privacy, while providing law enforcement legal guidance that would help avoid unwarranted surveillance and the suppression of evidence obtained without legal authority.
The proposed legislation is necessary to protect New Yorkers’ personal privacy, to maintain the public’s trust in law enforcement, and to promote accountability of the criminal justice system.
For the foregoing reasons, the NYCLU urges lawmakers to pass A.8055.
1 “Stingray” is the name of one model of cell site simulators manufactured by the Florida-based Harris Corporation. It is often used in public discourse, and is used in this memorandum, to refer to all models of cell site simulators. Other models of cell site simulators available include Kingfish, Triggerfish, Hailstorm, and Harpoon.
2 Pew Research Center, Mobile Technology Fact Sheet (last updated Oct. 2014), available at http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/.
3 Electronic surveillance by the government is also regulated under Art. 705 of the Criminal Procedure Law. However this provision addresses “pen register” technology, which involves more primitive electronic devices used to record the incoming and outgoing phone numbers from a landline telephone.
4 See United States v. Karo, 468 U.S. 705 (1984); Kyllo v. United States, 533 U.S. 27 (2001).
5 See People v. Weaver, 12 N.Y.3d 433 (2009); the New York State Court of Appeals framed this broadly, holding that, under the State Constitution, “in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”
6 See Riley v. California, 134 S. Ct. 2473 (2014).