Sunday’s edition of The Charlotte Observer led with an article that should send a chill down the spine of anyone concerned about privacy issues. Since 2006, the Charlotte-Mecklenburg Police Department has used tracking devices that gather information from cell phones and other wireless devices to track down crime suspects. However, it’s so intrusive that it raises significant Fourth Amendment concerns.
These devices, known as pen registers, hav don’t capture voice conversations or store data. Instead, the devices–sold under trade names like StingRay, Kingfish, AmberJack, and TriggerFish–obtain information such as serial numbers and locations by mimicking a cell tower. For this reason, the standards for getting court authorization to use them are much lower than for obtaining a search warrant or wiretap. Based on numerous Freedom of Information Act requests by The Observer, CMPD asks judges almost on a weekly basis to use these devices to track suspects in violent felonies and missing persons cases. Charlotte is one of 46 cities whose police departments use such devices, according to the American Civil Liberties Union. They were obtained via federal grants for counter-terrorism efforts. According to Ars Technica, such devices have been in use at the federal level at least since the mid-1990s.
However, privacy advocates about the level of oversight in these cases. The orders giving permission to used these devices are kept under seal. While they can be unsealed the cases make their way through the courts, at least one Charlotte-area judge, Richard Boner, says he can’t recall unsealing any orders related to these devices. That doesn’t sit well with Electronic Privacy Information Center lawyer Alan Butler, who says that police in Charlotte and other cities who use this technology have handled these cases in a manner that has “prevented meaningful judicial review.” All too often, Butler says, the judges who sign these orders don’t know how the devices work, and the police don’t provide them with enough information to make sure the police are acting within constitutional limits. It’s not an idle concern. These devices are powerful enough to penetrate inside the walls of a house, raising the prospect that innocent bystanders could have their information captured.
However, it’s very difficult to get information about how these devices work.? The FBI has directed cities who use these devices not to disclose information about them, citing the need to keep criminals from learning about police tactics, as well as national security concerns. According to FBI tracking technology unit chief Bradley Morrison, the FBI feels that information from these devices is exempt from discovery. Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation, isn’t buying it. She said that defendants have a constitutional right to discovery, and feels the FBI has “set up local departments for discovery abuses” with this advice.
In 2012, the Charlotte City Council approved a request to update the technology without debate. But at least two council members were stunned to learn just how intrusive it was, or how little oversight there seemed to be. Councilman John Autry said he wants to know three things about this program–“What happens to the data? Who sees it? Who has access to it?” Councilwoman Claire Fallon admitted that she and her colleagues should have pressed CMPD for more information about the devices before they voted. She thinks that while it’s being done in the name of safety, she doesn’t know “if it’s done any good” given the potential for civil rights violations.
At least 12 states have passed laws that tighten the standards for getting cell phone data, in some cases going as far as to require warrants. If there were any such laws in the works in North Carolina, they never made it to the floor before the General Assembly went home. As a North Carolinian, I have to hope that the legislature at least considers such a measure at the next session. It’s the very least that can be done to maintain confidence in the system.
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Darrell Lucus, also known as Christian Dem in NC on Daily Kos, is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
