This article originally appeared on EFF.org by ERNESTO FALCON
FCC Helped Create the Stingray Problem, Now it Needs to Fix It
It is long overdue for the FCC to address Stingrays’ impact on speech, interference with 911 calls, and invasion of privacy.
EFF recently joined with the American Civil Liberties Union in a petition to the Federal Communications Commission (FCC) in support of a complaint filed against the Baltimore Police Department for illegal usage of a surveillance technology, often called “Stingray,” that spies on our cell phones by simulating a cellular tower. A dozen U.S. Senators led by Senators Franken, Leahy, and Wyden have also recently weighed in with the FCC on the need to investigate the issue along with any disproportionate impacts on communities of color who are more dependent on wireless broadband as their only means to communicate. We think the time has come for FCC action as the grave problems of harmful communications interference, disrupted access to emergency 911 services, and invasions of privacy reach beyond just Baltimore and require a national solution. The airwaves are public property and belong to all of us and the FCC manages those airwaves on behalf of the public.
What is the FCC’s Role in Addressing the Issues?
Federal law mandates that every commercial device that emits or transmits electromagnetic signals must be approved by the FCC. From the iPhone to your common router, the FCC has reviewed and approved every wireless commercial product in the United States in order to ensure that the airwaves remain usable by avoiding interference that would make transmitting a clear signal impossible. While this may seem fairly top down, it has prevented many instances of harmful interference in the wireless marketplace.
The FCC’s involvement in cell site simulators began years ago when it first approved commercial sales to law enforcement. Documents disclosed under FOIA show that the company that sells Stingrays had local police departments lobby the FCC close to ten years ago for approval. A common claim repeated verbatim by different departments was that cell site simulators would create minimal interference, be rarely used, and briefly interact with phones. However, law enforcement today instead is using this surveillance equipment in ways that directly contradict their original assertions to the FCC.
We now know, for example, that police departments use them for hours at a time without a warrant, that officers deploy them for tracking down people suspected of non-violent crimes like harassing phone calls, and that certain devices do in fact cause significant interference to cell service. The combination of the extraordinary power of these surveillance tools (they can scan hundreds of innocent user cell phones at once) and the lack of FCC regulations has resulted in explosive growth in their deployment. Outside of the baseline statutory prohibitions against “harmful interference” and requiring a license to transmit (which is different than an authorization to sell the device), no FCC rules exists that specifically regulate cell site simulators.
Police today violate these basic statutory protections when using cell site simulators and thereby disrupting the cellular service of many innocent people. Based on publicly available information, it appears that some cell site simulators utilized today by law enforcement are jamming LTE and 3G services in order to force phones to downgrade to 2G services where they are easily exploited due to legacy vulnerabilities. A study by the Royal Canadian Mounted Police also found that 911 call access can be blocked 50 percent of the time when a phone interacts with a cell site simulator. Testing these devices requires technical analysis but cell site simulators are only legally sold to and owned by law enforcement agencies. Therefore, the FCC is the best suited agency with the legal authority and technical expertise to determine what is happening in Baltimore and potentially across the entire country as wireless surveillance by law enforcement continues to proliferate.
In the past, the FCC faced a similar issue when dealing with cell phone signal boosters. Third parties developed mini-towers that would augment wireless signals in areas with poor coverage. Carriers complained that these devices were operating in their exclusive space and disrupting their service. That was the same problem we see today: signal boosters, like cell site simulators, were interfering with communication services and 911 access. The FCC’s response should be the same now as it was then: the agency studied the problem and took steps to resolve it in a public forum.
FCC Should Mandate Transparency and Judicial Review for Cell Site Simulators
The sale of police surveillance equipment (often in coordination with federal law enforcement officials) has systematically been shielded from public scrutiny. EFF has spent years trying to break through the obfuscation, with some success, but too many secrets remain. It is time for local communities to have more control over their police. The FCC has the authority to require transparency as a condition of usage. For example, it can require local law enforcement departments to register their intent to purchase and deploy a cell site simulator and thereby provide public notice before the fact. In the few instances where local government has been made aware of the intention of local police to purchase surveillance equipment, public debate followed, and local officials and community members properly had a direct say for or against the expansion of police surveillance.
The time also appears ripe to harmonize basic judicial review requirements for state and local police with policies already adopted by federal agencies. In late 2015, the Department of Justice instructed federal law enforcement agencies to obtain a warrant before using a cell site simulator, in recognition of the constitutional privacy rights of citizens. The Department of Homeland Security followed suit with its own policy mandating that Stingray usage required a warrant. The FCC should apply such a policy to state and local law enforcement entities, too, as a condition of using the public airwaves for surveillance equipment. The FCC can protect the public interest by bringing local and state law enforcement actors in line with federal policy designed to protect citizens’ constitutional privacy rights against unreasonable searches.
It is possible that cell site simulators simply will not work in today’s crowded wireless market and that law enforcement will have to rely directly on carriers for information about telephones after acquiring the appropriate judicial clearance. Simply put, Americans should not be forced to accept degraded services and law enforcement should not be given a blank check to cause harmful interference. The FCC must act on behalf of the public to begin resolving this problem.