Opinion: The FCC needs to end warrantless cellphone spying
Across the country, police departments聽聽the聽private conversations of innocent people.
They're doing it with technological tools that surveil suspects and protesters, but also unsuspecting bystanders whose calls and text messages are vacuumed up by so-called聽"Stingrays," which operate as fake cell towers in order to hijack phone calls, text messages, and data streams.
The Federal Communications Commission needs to act swiftly to curtail the growing use of this invasive technology聽that's a聽clear and present danger聽to Americans' basic privacy rights.聽With the incoming Trump administration聽, there is precious little time for Chairman Tom Wheeler to shine a light on the often highly secretive police tactic.
These fake cell sites聽aren't just surveilling聽individual targets, either. They interfere with聽everyday users,聽聽and frequently degrading or entirely disrupting phone service, including 911聽calls. And the FBI and local police departments聽聽the public about when, where, and on whom these devices are used; and聽, lawmakers, and聽judges聽have all called for more transparency and oversight to determine the extent (and legality) of Stingray use.
What's certain is that Stingrays聽disrupt innocent civilians' communications聽鈥� a practice that runs afoul of existing law. We know that Stingrays cause interference 鈥� from dropping and misrouting calls and interrupting 911 service. What's more, there's the potential for police to listen in on conversations legally protected by attorney-client, priest-penitent, and doctor-client privilege.
Local grassroots organizations and a dozen US senators have聽聽of Stingrays and the enforcement of existing laws to protect civilians from harmful interference and illegal wiretapping.
Revelations of widespread spying on cellphone communications of entire communities by the FBI and local police (for example,聽聽of potentially tens of thousands of residents) necessitates intervention by the FCC. It needs to rein in a practice that completely undermines decades of "presumption of privacy" precedence in our telephone conversations. That's why warrants are required prior to surveilling land line phones. This long-standing precedent needs to be clarified to apply to cellphones.聽
The extent and frequency of Stingray use has been hidden, too, in large part because Stingray maker Harris Corporation insists that local police sign聽聽(NDA). Government prosecutors have even聽聽once it became apparent they would have to explain the (often warrantless) use of Stingrays to collect evidence against defendants. And judges, including in Baltimore, have聽聽gathered by warrantless Stingray use, declaring that this use runs afoul of the explicit protections granted by our Bill of Rights.
For the past half-decade, the FBI has聽聽the FCC requires local police departments to sign NDAs before Harris Corporation could sell them a Stingray 鈥� a mandate the FCC never made. In 2014, the FCC聽聽requiring police sign NDAs. And even more strangely, in 2015, the FBI聽聽that the NDA actually did not prevent prosecutors from disclosing Stingray use, contradicting their previously stance (and the language) of the NDA itself.
Stingrays aren't the only surveillance technologies that Baltimore Police have mislead the public about. In October 2016, the American Civil Liberties Union revealed the Baltimore Police Department聽聽when they stated they only kept aerial surveillance from their Cessna 鈥溾�� for 45 days. As it turned out, the Baltimore police have been keeping the data indefinitely, permanently tracking the movements of the population of Baltimore for unknown purposes.
Additionally, it appears that police in Baltimore and elsewhere are聽disproportionately targeting black communities with surveillance technologies. And that's especially troubling in cities with histories of racial discrimination.聽
The FCC has a responsibility to address the growing problem of discrimination in surveillance practices, protect innocent civilians from unwarranted surveillance, and enforce existing rules that prevent harmful interference to communications infrastructure. As numerous findings and filings document, our civil liberties are being violated and our right to privacy abrogated by practices that run afoul of existing FCC rules.
Chairman Wheeler owes it to the American people to enforce the law before the clock runs out.
Sascha Meinrath is the Palmer Chair in Telecommunications at Penn State and director of X-Lab, an innovative think tank focusing on the intersection of vanguard technologies and public policy. Follow him on Twitter聽.
Jeff Landale is the executive assistant at X-Lab, a venture聽focusing on tech policy interventions. Follow Jeff on Twitter聽.
