A judge in Charlotte, North Carolina, has unsealed a set of 529 court documents in hundreds of criminal cases detailing the use of a stingray, or cell-site simulator, by local police. This move, which took place earlier this week, marks a rare example of a court opening up a vast trove of applications made by police to a judge, who authorized each use of the powerful and potentially invasive device.
According to the Charlotte Observer, the records seem to suggest that judges likely did not fully understand what they were authorizing. Law enforcement agencies nationwide have taken extraordinary steps to preserve stingray secrecy. As recently as this week, prosecutors in a Baltimore robbery case dropped key evidence that stemmed from stingray use rather than fully disclose how the device was used.
The newspaper also reported on Friday that the Mecklenburg County District Attorney’s office, which astonishingly had also never previously seen the applications filed by the Charlotte-Mecklenburg Police Department (CMPD), will now review them and determine which records also need to be shared with defense attorneys. Criminals could potentially file new claims challenging their convictions on the grounds that not all evidence was disclosed to them at the time.
Relatively little is known about precisely how stingrays are used by law enforcement agencies nationwide, although more and more documents have surfaced showing how they've been purchased and used in limited instances. Last year, Ars reported on leaked documents showing the existence of a body-worn stingray. In 2010, security researcher Kristin Paget famously demonstrated a homemade device built for just $1,500.
Worse still, local cops have lied to courts (at the direction of the United States Marshals Service) about the use of such technology. Not only can stingrays be used to determine a phone’s location, but they can also intercept calls and text messages. While they do target specific phones, they also sweep up cell data of innocents nearby who have no idea that such data collection is taking place.
Neither Senior Resident Judge Richard Boner, nor the Mecklenburg County District Attorney’s office, nor the Mecklenburg County Public Defender’s office immediately responded to Ars’ request for comment. Ars has filed a public records request with the court to obtain the full set of documents.
UPDATE 1:34pm CT: Meghan Cooke, a spokeswoman for the District Attorney's (DA's) Office, told Ars in a statement that the office did not know how long the review process would take.
"As soon as the DA’s Office has a list of cases associated with the orders, the office will review those cases individually to determine whether the information was shared with defendants," the statement read. "If prosecutors find that the information was not shared, the office will then work to determine whether the information should have been included in the discovery process. The DA’s Office continues to stand by its law enforcement partners as we all work to protect the rights of individuals while also keeping our community as safe as possible.”
“Sealed at the request of police”
According to the Observer, which did not publish the records in full, but summarized some of them, the “CMPD sought permission to use cellphone surveillance more than 500 times since 2010, or about twice a week…Documents and interviews suggest judges rarely, if ever, denied authorization requested by CMPD to use equipment that can intercept cellphone information from criminal suspects and innocent people alike.
“In Mecklenburg County, the documents had remained sequestered in a filing cabinet at the clerk of court’s office. They were sealed at the request of police, who have said they were worried about criminal suspects avoiding detection.”
The documents apparently include “boilerplate language connected to phone data,” but do not specifically mention a stingray, nor indicate how it would be used, nor what its capabilities are.
It has been very difficult for attorneys and the public alike to fully understand when, where, and how law enforcement has been asking judges to sign off on stingrays. Previously, Brian Owsley, one federal magistrate judge who served in Texas for eight years and is now a law professor at Indiana Tech, had his efforts thwarted to unseal similar orders.
Owsley is involved in a related situation involving an attempt to reveal the government's actions. Not long before he stepped down from the bench, Owsley tried to unseal more than 100 of his own long-completed judicial orders involving digital surveillance that he himself sealed at the government’s request.
But then, a US district judge—who outranks a magistrate—vacated Owsley’s order and resealed them all. That order itself was then sealed. The media company Dow Jones, which publishes The Wall Street Journal, filed a motion in federal court in June 2014 to compel the release of those documents. The court has yet to rule on the issue.
"I don't think it's that normal," Owsley told Ars in June 2014.
"I sent in various ways to the government, a number of applications and I said I'm going to unseal these unless you tell me why I shouldn't," he said. These were done in waves. The first wave were completed five years previous, past the statute of limitations, and quite likely are no longer really significant. That was the first wave. The government did not oppose unsealing of any of them. So I spoke to the court's office and said to upload them to make them available online, and as they were doing that, somehow this district judge found out about it an interjected himself into the process. If the government has said: 'We don't think these things should be unsealed,' that's one thing. But just out of the blue the district judge interjecting himself, that's a little unusual."
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