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NYPD’S SECRET USE OF CELLPHONE-SWEEPING TECHNOLOGY

By R. J. NICHOLAS

Scores of police departments across the country are quietly using a highly secretive technology developed for the military that can track the whereabouts of suspects by using the signals constantly emitted by their cellphones, including New York City, Los Angeles, Chicago and Las Vegas.

Objections to the suitcase-sized devices known as StingRays or cell site simulators are increasingly growing amidst civil liberties and privacy groups. The StingRays or cell site simulators mimick cell towers and can sweep up cellphone data from an entire neighborhood. The cellphone user doesn’t even have to make a call or send a text message, the Police can still determine the location of a phone without the phone being in use. Some versions of the technology can even intercept texts and calls, or pull information stored on the phones.

Privacy experts say, that part of the problem is the devices can also collect data from anyone within a small radius of the person being tracked. In most cases, law enforcement will go to great lengths to conceal usage by offering plea deals rather than divulging details on the StingRay. Attorney Jerome Greco, of Legal Aid Society said, “We can’t even tell how frequently they’re being used.” Greco recently succeeded in blocking evidence collected with the device in a New York City murder case. “It makes it very difficult”

It has been brought to public attention that at least 72 state and local law enforcement departments in 24 states plus 13 federal agencies use the devices. The departments that use them must take the unusual step of signing nondisclosure agreements overseen by the FBI which makes further details hard to come by.

The Harris Corporation is a defense contractor that makes the devices. They are involved with the agreements that are intended to prevent the release of sensitive law enforcement information to the general public, states an FBI spokeswoman. The agreements, however, don’t prevent an officer from telling prosecutors the technology was used in a case.

The use of this technology was virtually unknown to the public in New York City until last year. The New York Civil Liberties Union forced the disclosure of records showing the NYPD used the devices more than 1,000 times since 2008. The NYPD and other police departments across the country are standing behind the continued use of this current technology saying it helped catch suspects in kidnappings, rapes, robberies, assaults and murders. It has even helped find missing people, if they even had a cell phone on them.

None-the-less, privacy experts and citizens that support the constitution say such deceptive gains come at too high a cost. Jennifer Lynch, an attorney with the Electronic Frontier Foundation said, “We have a Fourth Amendment to the Constitution.” She is referring to the protection against unreasonable search and seizure. “Our Founding Fathers decided when they wrote the Bill of Rights there had to be limits placed on government.”

Proposals to stop this invasion of privacy have been introduced by lawmakers in several states ranging from warrant requirements to an outright ban on the technology. There are a dozen states that already have laws requiring warrants. Last year, federal law enforcement said that it would be routinely required to get a search warrant before using the technology — a first effort to create a uniform legal standard for federal authorities.

As a result case law is slowly building. A Washington, D.C., appeals court overturned a conviction on a sex assault after judges ruled a violation of the Fourth Amendment because of evidence improperly collected from the simulator without a proper warrant, two months ago.

Last month, in the New York murder case argued by the Legal Aid Society, a judge in Brooklyn ruled that the NYPD must have an eavesdropping warrant signed by a judge to use the device. This is a much higher bar than the “reasonable suspicion” standard that had previously been required.

State Supreme Court Judge Martin Murphy wrote, ”By its very nature, then, the use of a cell site simulator intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause.”

Even though there had been a court order to use a StingRay, New York City police officials disagreed with the ruling and disputed that a StingRay was even used in the case. Police officials say they require a higher stander of probable cause when applying for the devices, but who knows what’s really happening.

Many hope the ruling will push the nation’s largest department into meeting the higher standard, and help judges better understand the intricacies of more cutting-edge surveillance, including Greco from the Legal Aid Society. Greco said, “We’re hoping we can use this decision among other decisions being made across the country to show that this logic is right. The fact that most judges don’t understand this growing technology, is what is making cell tapping a major issue. It makes it easier if another judge has sat down, learned about this new surveillance and really thought about it.”

Will American citizens continue to sacrifice their boundaries and privacy out of fear and oppression or will they stand like their forefathers did and say no more?

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