INDIANAPOLIS (WISH) — Records show the Indianapolis Metropolitan Police Department obtained a controversial device capable of tracking cell phone activity.
And it’s had it since 2012.
In response to an open records request, IMPD produced a non-disclosure agreement that shows it received written permission from the FBI to obtain and use a device known as a Stingray, manufactured by the Harris Corporation.
The device mimics a cell tower enabling law enforcement to gather information – including the location of potential targets of criminal investigations. Until recently, IMPD has not acknowledged that it owned or operated such a device.
Little is known about how often or if IMPD has used the Stingray device or other similar devices, but a copy of the non-disclosure agreement approved by the FBI shows that IMPD received authorization for the device just a few weeks before the 2012 Super Bowl in Indianapolis.
At the time, there were concerns about potential criminal or terrorist-related activities causing IMPD to beef up its own surveillance methods.
An IMPD spokesman declined to comment further on Monday, saying in an email that the department is “prohibited” from talking about the device.
Part of the non-disclosure agreement states that “IMPD will not publicize its acquisition or use of the Harris Corporation equipment/technology or any of the capabilities afforded by such equipment to the public, other law enforcement agencies, including but not limited to, in any news or press release, interviews or direct or indirect statements to the media.”
But in response to an open records request — first reported by the non-profit news agency MuckRock – IMPD did provide a copy of that agreement. It shows that an initial “software agreement” between the Harris Corporation and IMPD was reached in 2010, though the FBI would not grant its approval in the form of the non-disclosure agreement until the first week of January 2012.
The records provided to I-Team 8 also showed that the IMPD paid more than $28,000 last year for maintenance to certain platforms or software upgrades related to this device.
Former Public Safety Director and later IMPD Police Chief Troy Riggs also declined to talk specifics about the device, but did say that technology has its merits in the law enforcement community.
“Look at the things you do everyday as a citizen, you utilize technology. Bad guys use technology to steal money, to harm individuals, and governments and police departments have to use technology to provide public safety,” Riggs said, who is now the vice president of the Indianapolis-based think-tank the Sagamore Institute.
But it’s that same technology that has raised privacy concerns.
Ken Falk with the American Civil Liberties Union of Indiana said too little is known about these devices.
“The problem with the StingRay is that we don’t know how much information is being gathered and it certainly is gathering information from everyone who is using a cellphone within the area that the Stingray is mimicking a cell tower – it’s acquiring information – and that’s a concern,” Falk said.
The federal government has worked hard to protect the device and its capabilities.
The non-disclosure agreement signed by IMPD also allows for the FBI to intervene if IMPD “learns that a district attorney, prosecutor or a court is considering or intends to use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation… beyond the evidentiary results obtained through the use of the equipment/technology in a manner that will cause law enforcement sensitive information relating to the technology to be made known to the public…”
In addition, the agreement states that IMPD will – at the request of the FBI – seek dismissal of the case in lieu of disclosing information concerning the “Harris Corporation wireless collection equipment/technology…”
I-Team 8 reached out to the Marion County Prosecutor’s Office to find out how many cases have been prosecuted using these technologies, or how many cases have been dismissed because the FBI intervened. A spokesman for the office said they were looking into the matter and would get back with I-Team 8. UPDATE: Marion Co. Prosecutor’s Office spokeswoman responded to I-Team 8 saying the FBI has not intervened in cases involving the Stingray cell-site simulator. She declined to comment further when pressed on questions about how often the device had been used in criminal cases prosecuted by that office.
Across the country, major metropolitan police departments have acknowledged that they have surveillance technology capable of tracking cell phone activity. Though few talk about them openly.,
In a case filed in the Seventh Circuit Court of Appeals last year, a criminal defendant objected to how a Wisconsin police agency used a cell-site simulator to track his whereabouts, which led to his arrest and conviction on a felony weapons charge.
The appeals judges denied his appeal, noting that he had no right to privacy in the public place regardless of how police obtained his whereabouts. But in a dissent, Judge Diane Wood of the Seventh Circuit Court of Appeals, wrote: “This is the first court of appeals case to discuss the use of a cell-site simulator, trade name ‘Stingray’ We know very little about the device, thanks mostly to the government’s refusal to divulge any information about it. Until recently, the government has gone so far as to dismiss cases and withdraw evidence rather than reveal that the technology was used.”
Wood went on to write: “Although we all agree (the defendant ) does not have standing to challenge any location information gathered from other persons’ cell phones, he is entitled to challenge the use of the Stingray itself, along with the gathering of any non-location information from his cell phone.”
In their affirming opinion, the majority of judges noted that the Department of Justice has said the cell tower simulators provide only relative signal strength and general direction of a subject cellular telephone; they do not function as a GPS locator, as they do not obtain or download any location information from the device or its applications…. the simulator does not capture emails, texts, contact lists, images or any other data from the phone.
The judge also noted that the Department of Justice would ordinarily seek a warrant…. before using a cell-site simulator, but it has not conceded that this is constitutionally required.
In the conclusion of her dissent, Judge Wood wrote: “It’s time for the Stingray to come out of the shadows so that its use can be subject to the same kind of scrutiny as other mechanisms.”