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Analysis

ICE Agents Are Using Battlefield Surveillance Technology To Snoop On Cell Phones

New Yorkers deserve to know how the NYPD is working with ICE, what information they are sharing, and how the NYPD is using new surveillance technologies.

  • Michael Price
June 14, 2017

Cross-posted from The Huff­ing­ton Post

A federal warrant unsealed in May reveals how immig­ra­tion author­it­ies are using an invas­ive cell phone snoop­ing tool, known as a “Stin­gray,” once confined to the battle­fields of Iraq and Afgh­anistan. It is the first evid­ence of the device being used for immig­ra­tion enforce­ment, and it high­lights the need for greater trans­par­ency about how state and local police deploy similar tools.

As the Detroit News first repor­ted, an Immig­ra­tion and Customs Enforce­ment (ICE) agent obtained a warrant to deploy the Stin­gray, also called a “cell site simu­lator,” to find a 23-year-old undoc­u­mented restaur­ant worker from El Salvador accused of illeg­ally re-enter­ing the United States. The case is part of a dramatic uptick in immig­ra­tion arrests during the first three months of the Trump admin­is­tra­tion.

Stin­grays are fake cell phone towers about the size of a briefcase that force all phones in the area to connect to it – and by exten­sion, law enforce­ment – instead of the phone company. They cause nearby phones to trans­mit unique iden­ti­fic­a­tion numbers and can be used to accur­ately locate a partic­u­lar device or even inter­cept its commu­nic­a­tions. Stin­grays collect data from all phones in the area, not just the target phone, rais­ing privacy concerns over what happens to the personal inform­a­tion that is collec­ted incid­ent­ally.

Origin­ally designed for milit­ary and intel­li­gence agen­cies to fight terror­ism over­seas, Stin­grays have prolif­er­ated domest­ic­ally in the years since 9/11. Federal agen­cies, includ­ing ICE, have had them since at least 2008, but little was publicly known about why or how they were used. State and local police depart­ments purchased them too, often through federal counter-terror­ism grants. But they kept their exist­ence shrouded in secrecy due to non-disclos­ure agree­ments with the FBI. That secrecy wound up jeop­ard­iz­ing thou­sands of prosec­u­tions after word of the devices even­tu­ally came to light.

In 2015, both the Depart­ment of Justice and the Depart­ment of Home­land Secur­ity (which includes ICE) issued policies restrict­ing the use of Stin­grays. Agents must now obtain a judi­cial warrant based on prob­able cause and include import­ant back-end privacy protec­tions, like a require­ment that non-respons­ive data be deleted. But those policies are not law and they do not apply to state and local law enforce­ment agen­cies using the devices on their own. That is a huge gap given that at least 68 state and local police depart­ments around the coun­try now own Stin­grays, includ­ing the New York City Police Depart­ment (NYPD).

Unlike federal agen­cies, the NYPD has no public policy govern­ing its use of Stin­grays and it contin­ues to fight requests for greater trans­par­ency despite having used the tech­no­logy over 1,000 times since 2008. The depart­ment has stated that its prac­tice is to obtain a “pen register order” prior to using the devices, a low bar to meet. It merely requires the police to show relev­ance to an ongo­ing invest­ig­a­tion rather than prob­able cause for a search warrant. There is no indic­a­tion that the NYPD deletes data scooped up from inno­cent bystand­ers and no inform­a­tion about what the Depart­ment does with it. 

Detroit may mark the first time ICE has used a Stin­gray for targeted enforce­ment action, but it is unlikely to be the last. It is no coin­cid­ence that the case comes on the heels of Trump’s exec­ut­ive order on immig­ra­tion. Under Trump’s new policy, just being in the coun­try without permis­sion is a crime suffi­cient to draw federal enforce­ment action – and the accom­pa­ny­ing crim­inal search warrants. Consequently, soph­ist­ic­ated new surveil­lance tech­no­lo­gies like Stin­grays may now be used in low-level cases that would not have been pursued before Trump. It also raises the ques­tion of whether local agen­cies like the NYPD will be assist­ing.

Of course, New York is a “sanc­tu­ary city” that only complies with ICE “detainer” orders in cases involving certain “viol­ent or seri­ous felon­ies,” accord­ing to a 2014 city law.  NYPD Commis­sioner James O’Neill has told officers in no uncer­tain terms that the “NYPD does not conduct civil immig­ra­tion enforce­ment.” However, as in Detroit, illegal re-entry can provide a basis for crim­inal invest­ig­a­tion and enforce­ment, at least feder­ally. The NYPD main­tains that it does not usually coordin­ate with ICE, but it does appear to regu­larly share inform­a­tion with ICE that facil­it­ies federal enforce­ment actions.

New York­ers deserve to know more. They deserve to know how the NYPD is work­ing with ICE and what inform­a­tion the Depart­ment is shar­ing. And they deserve to know how the NYPD is using new surveil­lance tech­no­lo­gies like Stin­grays.

A bill pending in the New York City Coun­cil would go a long way toward trans­par­ency on these ques­tions. Dubbed the “Public Over­sight of Surveil­lance Tech­no­logy” (POST) Act, the law would require the NYPD to disclose basic inform­a­tion about the surveil­lance tools it uses, what happens to the data they collect, and whether the Depart­ment shares any of it with federal agen­cies like ICE.

If New York intends to be a model sanc­tu­ary city, then greater trans­par­ency is required. The NYPD should embrace this oppor­tun­ity to build trust with community members, to inform the public about how the Depart­ment uses its surveil­lance tools and shares inform­a­tion with federal author­it­ies. New York­ers should not be left in the dark.

(Image: Flickr.com/ Marco Catini)