A bipartisan group of lawmakers is pursuing a federal ban against the use of controversial cellphone-tracking gear without the express permission of a judge.
Known colloquially as “Stingrays,” cell-site simulators allow police and other authorities to narrow the location of a cellphone user down to a perceptible range, even placing them inside a particular home or apartment. Once used to track targets in America’s overseas wars, the devices—no longer the size of a suitcase, but concealable under an agent’s clothes—work by masquerading as cell towers, forcing connections with any mobile phones nearby.
Despite the plethora of public records demonstrating their use, the government has long considered Stingrays a secret worth protecting. The Department of Justice, for instance, has gone as far as to teach state and local police how to avoid mentioning Stingrays specifically when seeking warrants from judges. Officers with knowledge of their use have been forbidden from taking the witness stand. The FBI has also required outside agencies to sign non-disclosure agreements when obtaining the devices, at least in the past.
Famously, in 2014, U.S. Marshals seized a bevy of Stingray-related documents from a local law enforcement partner in Florida, having learned that the records could be provided to civil liberties attorneys citing the state’s generous public records statute.
“Cell site simulators have existed in a kind of legal no-man’s land for far too long,” Sen. Ron Wyden, a Democrat of Oregon, said. “Our bipartisan bill ends the secrecy and uncertainty around Stingrays and other cell site simulators and replaces it with clear, transparent rules for when the government can use these invasive surveillance devices.”
The “Cell Site Simulator Warrant Act” would establish a probable cause requirement for Stingrays; a threshold beyond “reasonable suspicion,” which demands officers present sufficient information capable of convincing a prudent person that a crime is being committed.
The bill’s authors say requiring a warrant strikes a needed balance between protecting people’s civil rights and ensuring police access to a modern tool useful in tracking down alleged criminals. In cases of emergency, such as a child abduction, court orders can be obtained after the fact. (Evidence obtained absent an eventual court order would be ostensibly inadmissible.)
What’s more, the bill requires judges to be notified that a Stingray, specifically, will be deployed, and that the judge be further advised of any potential negative impacts on bystanders.
Documents published by Canadian police in 2016 revealed tests had shown Stingrays capable of disrupting cell activity up to 650 feet from a target. (Police typically active the devices while in automobiles until they’re within close range of a target, in which case handheld devices are used.) Calls to emergency services were also disrupted, despite efforts by the Stingray’s manufacturer to shield phones calling 911.
As a result, Canadian authorities acknowledged the devices posed a “calculated risk to public safety,” and imposed a three-minute rule for their use.
The “Cell Site Simulator Warrant Act” imposes similar restrictions on U.S. intelligence agencies, who must seek their warrants from the secretive Foreign Intelligence Surveillance Court, including when targeting Americans abroad.
The bill would further impose a $250,000 fine on anyone caught illegally operating a Stingray, with a special exception for people engage in legitimate “good-faith” research or teaching.
In addition to Wyden, the Senate bill is also sponsored by Sen. Steve Daines, a Republican of Montana. A House version was introduced by Rep. Ted Lieu and Rep. Tom McClintock, a Democrat and Republican of California, respectively.
In October, Gizmodo reported exclusively that Harris Corporation, the maker of the Stingray, had ceased selling cell-site simulators directly to police departments. In response, state and local agencies have been pursuing contracts with another company, Tactical Support Equipment, which imports stingray-like devices from a Canadian firm known as Octastic. At the time, Octastic did not respond to Gizmodo’s requests for an interview.