Stingray debate doesn’t get its day in court

A case that the American Civil Liberties Union had hoped would open up a debate about the Baltimore Police Department’s use of a largely undisclosed cell phone data tracking device ended in plea deals on Wednesday.

Derrick Smith and Robert Harrison struck deals with prosecutors to plead guilty to charges in connection with the murder-for-hire case against them on Wednesday in federal court, according to records.

That means there won’t be any hearings in open court about Baltimore’s use of the Stingray to track criminals.

There is an unprecedented amount of secrecy around this technology.

The devices, made by the Florida-based Harris Corporation, mimic cell phone towers by collecting data of all the phones in a given area. That means police have access to the cell phone data of people who just happen to be in the same area as the potential suspects they are tracking.

The ACLU of Maryland filed a brief in the case that cited concerns about the secrecy surrounding the use of Stingrays, privacy of the cell phone users who are in the same area as the alleged criminals. They also submitted a recent letter from the two top members on the Senate Judiciary Committee to the U.S. Attorney General that raised similar concerns.

Harrison was booked as an accomplice in the case because he was in possession of Smith’s phone when police tracked it. Harrison’s attorney and the ACLU were set to argue that the evidence obtained using the Stingray violated Harrison’s 4th Amendment rights because police did not obtain a warrant. They obtained a different kind of court order by leaving out important details about the technology, the brief states.

Even though the debate over the technology didn’t have its day in court, ACLU of Maryland Senior Staff Attorney David Rocah said it still provided an opportunity to get the word out about the Stingray device.

“Filing a brief and the publicity around that helped focus people’s attention, and I think that’s important because there is an unprecedented amount of secrecy around this technology,” Rocah said.

U.S. Senators Patrick Leahy and Chuck Grassley echoed the ACLU’s concerns about secrecy in a recent letter to top justice officials in the Obama administration. The letter demanded that more information be made public about the use of Stingrays, in neatly numbered form.

Rocah said the ACLU will look to get involved in other cases, but they’re tough to find.

“Part of the problem is it’s been difficult to find cases where there’s a real indication that this technology is used,” he said.

That’s because police often don’t disclose their use of the Stingray unless they’re forced to. Law enforcement agencies, including BPD, have cited a nondisclosure agreement with the FBI not only to the public, but also to judges.

According to Muckrock, the Harris Corporation has also mandated a nondisclosure agreement with police departments who purchase the technology.

The Stingray device acts like a cell phone tower. (Photo via Harris Corp.)

Despite the judicial black box, the ACLU has made some headway on the legislative level. The group pushed for a Maryland law that requires police to obtain a search warrant before using the technology.

“It appears that they’re actively hiding the use of the tech, by applying for orders that have no relation” to the technology that they’re seeking to use, Rocah said. “That’s disturbing.”

The new law would have changed police requirements in the Harrison case, which happened before the provision took effect on Oct. 1. In the case, police obtained a court order to use a pen register device, which only tracks calls in and calls out.

The FBI also made changes to require warrants. Bureau representatives told the two Senators that the agency recently changed policies to require a search warrant, as well. But, like in Baltimore, they didn’t have to say it in public. The meeting took place behind closed doors.

“The issue is out there,” Rocah said. “There’s growing awareness that this technology is out there and is an issue.”