Last week, the New York State Police produced the last of its documents in response to the New York Civil Liberties Union’s Freedom of Information Law request for records relating to Stingrays, or cell site simulators — surveillance devices that collect information from nearby cell phones and that can locate people with precision. These records suggest that the State Police has spent far more than previously indicated on Stingrays, to the total tune of over $640,000. In recent years, the State Police purchased upgrades to the devices, including “Hailstorm” and “Harpoon,” which reportedly enhance Stingrays’ surveillance capabilities. Given the State Police’s statewide jurisdiction, these devices could be in use anywhere within New York.
For now, however, the public has no way to know when or where or how often the State Police has used these devices to spy on people because the State Police claims that it has no records on the use of Stingrays — no policies or guidelines, records relating to the number of times Stingrays have been used in investigations or copies of court orders authorizing their use. These are all categories of records that the NYCLU sought in its request, and if they exist the State Police was obligated under state law to disclose them or to claim an exemption justifying non-disclosure. The State Police, instead, stated that it could not locate any records falling within those categories and represented that it had provided the NYCLU with all responsive records. This absence of records might make sense if the State Police bought the device but never used it, but this seems unlikely given the recent investment of hundreds of thousands of dollars in equipment upgrades and training.
The State Police’s lack of records highlights one of the recurring problems with local law enforcement’s eager acquisition of Stingrays and other emerging surveillance technologies that are now trickling in from federal agencies, including the military: The systemic devaluing of transparency and of the privacy of people that law enforcement is sworn to protect. When police acquire new technologies, adopting policies with safeguards for privacy is a critical step for fostering public trust. These safeguards include requiring a warrant for using the technologies, mandating the deletion of records of non-suspects and ensuring adequate record-keeping. These safeguards are also critical for accountability and the integrity of the criminal justice system. Moreover, the adequacy of these policies and procedures must be evaluated under federal laws and state laws (which are often even more protective of privacy).
According to a recent Washington Post report, the Department of Justice is finalizing a review of the use of Stingrays by federal law enforcement agencies. Local law enforcement agencies operating Stingrays should, too, immediately launch a review of their practices and start keeping adequate records. Without records, there can be no transparency, oversight or accountability to the public.