Houston PD conceals Stingray use details from prosecutors, citing NDA; warrant for cell-phone location data bill filed

"For about seven years, the Houston Police Department has owned devices that can trick your cellphone into sharing its location and call log by pretending to be a cell tower," reported Karen Chen at the Houston Chronicle (Feb. 27).

But little is known about how they are deployed, only what they are capable of: telling law enforcement where you are and to whom you've been talking.

In Texas, police are not required to obtain a warrant before using a Stingray, and the net is indiscriminate. The devices sweep up all nearby information, regardless of whether the cellphone is involved in a crime.

Your correspondent was quoted briefly in the story. The most interesting news was something told to me several weeks ago by the Harris DA's office, but made public in this story for the first time: That the Houston PD refuses to tell even the District Attorney's office, much less local judges, what they're doing with this technology, citing a non-disclosure agreement with the Harris Corporation which makes the device. 

Harris County prosecutor Bill Exley said the arrangement doesn't put people's minds at ease. As far as he is aware, Stingrays do not amount to wiretaps, which reveal the content of what's being communicated. That said, Exley said, the nondisclosure agreement has prevented him, too, from knowing what exactly Stingrays are capable of or being used for. He said he has never offered evidence in court that was produced by a Stingray.

HPD has told him that Stingrays are most useful in catching fugitives.

"If there's a warrant for your arrest, the cops should be able to do anything lawful to find you," Exley said. "The question becomes, at what level do you start requiring police officers to ask judges so they can do things they are otherwise legally able to do?"

Exley said as far as he knows the Stingrays aren't wiretapping. But the truth is, the Stingray captures private calls and routes them through a fake cell phone tower operated by the police, and that includes call content as well as metadata. So we have nothing but HPD's say so to support the assertion that they're not accessing content, it's not because the technology they have isn't capable of doing so. If "trust us, we're the government" is good enough for you, you ought to be okay with this.

In Florida, where much more has been made public about how law enforcement uses these devices, "agencies have been using stingrays thousands of times since at least 2007 to investigate crimes as small as a 911 hangup." For example, "A third of the listed stingray cases, in a list provided by the Tallahassee Police Department (TPD), show that the most frequently cited crimes were robbery, burglary, and theft." Most uses did not involve a warrant. The open records gurus at Muckrock.com have been tracking this topic: check out their latest missive, including examples from the NDAs between Harris Corp and local police departments. (This has garnered them fans at the FBI.)

In related news, State Rep. Bryan Hughes yesterday filed HB 2263 - a reprise of his HB 1608 last session which garnered 107 joint and coauthors in the House - which would require warrants for law enforcement to access cell phone location data, and there is interest (including among law enforcement interests) in potentially amending the bill language to include Stingrays (a trade name, the technical term is "IMSI catchers") before everything is said and done.

There's nothing wrong with law enforcement using the latest available technology, where appropriate, but there's also nothing wrong with judges exercising oversight over its use to ensure that new technological advances don't unwittingly dissolve old constitutional protections.