May 3, 2015
After 9/11, the US government commissioned a task force to identify gaps within the intelligence community and state law enforcement to connect the dots in counter-terrorism threats – the answer was state-run Fusion Centers. The Fusion Centers were intended to be a clearinghouse for local law enforcement to share its data with the feds.
As part of the continuing coverage of state and federal law enforcement’s use of “Stingray” boxes San Diego 6’s investigation led to ties with the Fusion Centers. The “Stingrays” are smart phone tower mimicking devices used to collect mass data from unsuspecting targets by using technology that tricks cell phone towers into diverting mobile calls to local law enforcement agents who then record and track a suspects’ location. But further investigation reveals the use of the “stingrays or dirt boxes” is more widespread than originally reported.
Information gathered by SD6 demonstrates that the more than 70 Fusion Centers across the nation also use the CIA/DOD-inspired technology. The San Diego Sheriff’s legal department denied the Sheriff Department uses the “Stingray” boxes. After further research SD6 learned that the Sheriff’s Department details a full-time deputy to the state-run Fusion Center in San Diego. But questions still remain about the legality of using the extraordinary surveillance devices within the US.
In the legal case, Klayman v. Obama, a decision issued in December 2013 by US Federal Judge Richard Leon in Washington, DC, gave the giant telecom company Verizon hope in its fight against disclosure of subscriber information without a warrant. Judge Leon declared the NSA’s mass phone surveillance was likely unconstitutional. The ruling was the first successful case against the Obama administration’s controversial spying program and the judge ordered the plaintiff’s data be purged from NSA’s system.
The Klayman case undermines the government’s claim that its bulk phone surveillance program is legal. Judge Leon found the “Bulk telephone metadata collection and analysis almost certainly does violate a reasonable expectation of privacy, which, in turn, likely results in a violation of the Fourth Amendment.” The Judge also emphasized that “the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.” [Smith v. Maryland 442US735]
The NSA’s dragnet program uncovered by whistleblower Edward Snowden alerted the American citizenry to the government’s metadata collection of targeted cell phones that also captured metadata on everyday Americans with no ties to terrorism.
Surveillance, by definition means to observe or watch, obviously a more deliberative process. Contrast that with the responsibilities of first responders, like police and sheriffs, who must make instantaneous decisions based on oftentimes-fragmentary information. But first responders are always driven by public safety and leave the determination of their actions to judges and juries or departmental internal affairs. Data collection, on the other hand, generally includes the collection of large amounts of information that must be analyzed and processed. Usually, no quick decisions have to be made. The blurring of the distinction of the actions of first responders and data collectors means the actions of the fusion centers are concealed from public review under the auspices of national security.
The USA Patriot Act authorized federal intelligence agencies to collect metadata, or mass collection of information, without warrants, for the purposes of analysis. The distinction is that the collection of metadata was intended for offshore actions by intelligence organizations and not permitted within the US. But by blending offshore methods and processes, such as with the Department of Homeland Security’s, HSI, which has the authority to act within as well as outside the US, unlike the CIA which is prohibited from activities within the US– it is not farfetched to understand that the legal distinctions would become blurred as well.
The problems with federal metadata collection to local law enforcement are deep seated. Under the USA Patriot Act, the metadata collected, even “inadvertent” data, is subject to analysis and review by the intelligence agencies and can further be expanded by the “two-hop rule” that allows the intelligence agencies to expand the initial “inadvertent” data to two additional layers of telemetric data. Local law enforcement does not have that luxury. Local law enforcement must obtain warrants for wire-tapping based on probable cause. So “tips” provided to local law enforcement by intelligence agencies are problematic to prosecutors and defense attorneys. Prosecutors are required to disclose the source of their evidence, including information that may be exculpatory to defendants. But the intelligence agencies act within national security secrecy rules and prohibit the disclosure of their methods and processes of data collection. In a recent Maryland court case, a judge angrily reacted to a prosecutor’s withholding of information to the judge by releasing the defendant for time served (Link to article).
Also, in a NY case, the FBI moved for dismissal of the charges rather than to disclose the sources of its evidence. (Article here)
However, according to news reports, in 2012, law enforcement in greater San Francisco area requested a Harris Corporation Stingray device. The San Jose Police Department application for the Stingray disclosed that several agencies – including San Diego Police and San Diego Sheriff’s Department used the Harris products.
“The San Jose Police Department has done extensive research and has contacted police agencies, in California, that utilize this type of technology. These agencies include San Francisco PD, Oakland PD, Los Angeles PD, San Diego PD, Sacramento Sheriff’s Department and Los Angeles Sheriff’s Department. Each of these agencies utilize Harris products…” In another instance The Bay Area UASI FY 2012 Project Proposal Form disclosed: “Research of the product consisted of testing by San Jose Police and technology and equipment feedback from the U.S. Marshalls [sic] Service… the Oakland Police Department, the Sacramento Sheriff’s Department, the San Diego Sheriff’s Department, the Los Angeles Police Department and the Los Angeles Sheriff’s Department.”
Deputy Director of the San Diego Fusion Center, Roy Frank disclosed in an interview with this reporter that the San Diego Fusion Center works “closely with all six California Centers.” So why are there conflicting reports on the operation and use of Stingray devices? Frank tiptoed around the direct question of Stingray usage and told SD6 to contact the FBI for more information since their role within the Fusion Center is not investigative. (SD6 filed a Freedom of Information Act request on April 12, 2015 and was assigned a case number, but has not received a response regarding the information requested on the Stingray devices.) On the other hand, the San Diego Police Department responded to SD6 admitting it had and uses a Stingray.
Frank says he spends his day sifting through tips and leads given to him by various law enforcement agencies (that purportedly use the Stingray devices). “We are a hub that analyzes tips and leads, our component does not do any investigative work.” He did admit that the Fusion Center compiles intelligence, puts it through a vetting process before it is turned over to the appropriate agencies. But he did not reveal any information as to how the leads are generated or if the law enforcement agencies went to a judge to get the appropriate warrants before they collected the data.
Due to the sensitive nature of the Fusion Center Deputy Director Frank would not detail the process or how long they keep the information collected in their system, but did say they follow “Standard Operating Procedures (SOP), followed tried and true guidelines and make sure vital threats are passed on expeditiously. If the analyzed info is not useful we close the file.” The deputy director would not disclose exactly how long the center keeps the information they gather and disseminate but said the information is “eventually purged.”
While the Fusion Center started out as a strictly counterterrorism operation, the program has morphed to include transnational drug cartels as well as other localized crime. It is this aspect that has many privacy and First Amendment organizations worried.
The Senate investigates
A 2012 Senate report by the Permanent Subcommittee on Investigations looked into the Fusion Center protocols to determine if they were violating civil rights and if all the taxpayer dollars spent was an effective way to keep the homeland safe.
It concluded that only a few terrorist plots have been disrupted by Fusion Center and the intelligence is “uneven quality – oftentimes shoddy, rarely timely, (and) sometimes endangering citizens’ civil liberties and Privacy Act protections.”
The report also criticized the use of the Fusion Centers for non-terrorism investigations at the expense of Homeland Security grants. The Department of Homeland Security (DHS) was admonished by the subcommittee after it was unable to declare where federal money was spent from 2003 to 2011 within the Fusion Centers, “but (they) estimated the figure to be somewhere between $289 million and $1.4 billion.”
“It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties,” recently retired Senator Tom Coburn (R-OK), who called for the 2012 investigation. Concurring with the Senator was Assistant U.S. Attorney Harvey Eisenberg, the official coordinator of Maryland’s anti-terrorism efforts. “It’s something that grew…. information sharing (was) a problem. So that was our focus. We started to get requests for information services from various police departments and others, for things that were outside of terrorism, which is a crime.”
According to the Department of Homeland Security website the Fusion Centers were created to coordinate local, state and federal agencies to tackle the newfound homeland terrorism threat. “By building trusted relationships and collaborating with state, local, tribal, territorial (SLTT) and private sector partners, fusion centers can gather and share the information necessary to pursue and disrupt activities that may be indicators of, or potential precursors to, terrorist activity. With timely, accurate information on potential terrorist threats, fusion centers can directly contribute to and inform investigations initiated and conducted by federal entities, such as the Joint Terrorism Task Forces led by the Federal Bureau of Investigation (FBI).”
Unfortunately, DHS has resisted oversight of these centers. “The Department opted not to inform Congress or the public of serious problems plaguing its fusion center and broader intelligence efforts. When this Subcommittee requested documents that would help it identify these issues, the Department initially resisted turning them over, arguing that they were protected by privilege, too sensitive to share, were protected by confidentiality agreements, or did not exist at all. The American people deserve better. I hope this report will help generate the reforms that will help keep our country safe,” Coburn said.
“Fusion centers may provide valuable services in fields other than terrorism, such as contributions to traditional criminal investigations, public safety, or disaster response and recovery efforts,” said Democrat Senator Carl Levin, Subcommittee chairman. “This investigation focused on the federal return from investing in state and local fusion centers, using the counterterrorism objectives established by law and DHS. The report recommends that Congress clarify the purpose of fusion centers and link their funding to their performance.”
In another form of “mission creep” Fusion centers are expected to forward all intelligence files to HSI’s Office of Intelligence which further develops the Intel on illegal trade, travel and financial activity. “The office maintains its global awareness through operations that coordinate information throughout HSI and through intelligence exchanges with Department of Homeland Security components. The office also maintains secure data communications throughout ICE. Additionally, the office provides the agency with emergency response plans. The Collection and Operations subdivision identifies information gaps that influence the global intelligence community. It also helps share time-sensitive information with law enforcement and intelligence partners. Inside the 2014 Fusion Center report is a recommendation that Fusion Centers should continue to post all distributable analytic products to HSIN-Intel,” according to the HSI website.
But should Americans be concerned about civil liberties in a time of terrorist threats? It depends on whom you ask – talk to the average person about the local police recording their movements via cell phone and the typical answer is; “I don’t have anything to hide.” However, if you talk to First Amendment rights’ advocates and they will tell you technology used on the battlefields in the Middle East has no place in local law enforcement agencies. The Harris Stingray technology has indeed been used in the Iraq War (link here).
A September 22, 2011 Wall Street Journal article said the use of Stingrays prompted a constitutional debate “about whether the Fourth Amendment, which prohibits unreasonable searches and seizures, but which was written before the digital age, is keeping pace with the times.” They referred to the Daniel David Rigmaiden case, a computer hacker charged with fraud after he was arrested by law enforcement using a Stingray. The Defendant asked the court to disclose information about the government’s surveillance tactics for his defense.
His claim caught the judge’s attention and according to a February hearing transcript, Judge Campbell asked the prosecutor, “Were there warrants obtained in connection with the use of this device?” Frederick A. Battista, the prosecutor says they acquired a “court order that satisfied [the federal law] language.” Puzzled, Judge Campbell asked the government how the warrant could have been obtained without disclosing what type of technology they were using? He’s response, “It was a standard practice, your honor.”
The lead agency advocating for the use of Stingray’s is the FBI. It considers the Stingray device law enforcement sensitive, therefore exempting them from sharing the technology with Judges as well as defendants.
So how exactly did the government keep the secret? We now know the federal government, through the Harris Corp, employed nondisclosure agreements (NDAs) to force law enforcement agencies from disclosing or even discussing ownership of the surveillance boxes. Looking at the more sinister side of the terrorist tracking devices, legal experts contend law enforcement agencies were trying to hide their illegal or lack of warrant approved wire-tapping.
Another complication revolves around the fact the US military has “Stingray” devices that it uses offshore in the war on terror, but when those units return to the US and conduct “martial law” type exercises, as were recently conducted in Texas, California, New Mexico, Arizona, Nevada, Colorado and Utah, the question arises as to what civil liberties protections are put in place to prevent the training with “Stingrays” from collecting metadata in the US? Under the law of Posse Commitatus, the US military is prohibited from participating in civilian law enforcement. What happens when “inadvertent” information collected by military owned “Stingray” units suggests criminal activity? Legal commentators believe these questions must be addressed in a public forum to ensure that Posse Commitatus is not compromised and American citizens are not subjected to federal surveillance without warrants. It’s time for the courts and legal authorities to step forward and generate appropriate safeguards.
The problem is evidence collected is not subject to judicial review or disclosure to the defense under the exculpatory rules for prosecutors and essentially removed due process for defendants offered under the Fourth, Fifth, and Sixth amendments. American Civil Liberties Union (ACLU) attorney Nate Wessler explained, “Our entire judicial system and constitution is (sic) set up to avoid a ‘just trust us’ system where the use of invasive surveillance gear is secret.”
The potential for future abuses will grow exponentially as a greater number of law enforcement agencies employ the high-tech machinery. “When this technology disseminates down to local government and local police, there are not the same accountability mechanisms in place. You can see incredible potential for abuses,” another ACLU lawyer Catherine Crump pointed out. It remains unclear what law enforcement agencies do with the collected data and how long they keep it.
A broad swath of groups ranging from Tea Parties, Black Lives Matter to Occupy Wall Street protestors against the oppressive law enforcement measures have one thing in common, “stop militarizing our law enforcement departments.”
For example an academic paper written by UCLA Ph. D. candidate and Stop LAPD Spying Coalition, Elizabeth Thornton titled “Securing Impunity: Surveillance, Militarization, and Extensive Information Gathering During the First Week of Non-Indictment Protests in Los Angeles” found the LAPD used an avalanche of surveillance equipment to record and track protestors. According to witnesses a LAPD drone crashed into the crowd reportedly injuring some demonstrators at the November 2014 protest. Throughout the marches, protestors photographed multiple government-licensed vehicles sporting a wide variety of cameras, license plate readers, and probable Stingray use to capture organizational leaders movements. Many protestors also reported that their cell phone batteries quickly died or service was interrupted, a common side effect of the Stingray devices. The paper disclosed that Chicago area protestors recorded the Chicago Fusion Center use of cell phone communications over the Chicago police scanners.
The explosion of surveillance technology used in the homeland has prompted many new civil rights’ groups to pop up. Relative newbie is Project Digital Privacy that calls for an “end of warrantless digital surveillance by local police forces … where Stingrays tap into (phones) without warrants to collect metadata on cell phones, computers, and more,” the 16-year-old founder Brandon Keibler said. “We believe that with the recent uses of devices like the Stingray by local police departments, both the security and privacy of an individual is threatened when it should be protected.”
Back in San Diego, Fusion Center deputy director Frank says, “the center has evolved over time, but it’s been consistent throughout the country. We all work well with one another.”
Perhaps the DHS catch phrase, “if you see something, say something” best describes the program. But don’t call the local Fusion Center to relay tips as they only investigate tips/leads that are given to them by local law enforcement.
In closing, DHS is fond of saying “if you see something – say something.” For all those citizen activists, please forward any pictures you have taken of Stingray devices to SD6 or firstname.lastname@example.org and “if you see a stingray – not the fish – take a photo and document it.”
San Diego 6 News issued a California Public Records Act (CPRA) request to both the San Diego Sheriff’s Department and the San Diego Police Department. The SDPD responded almost immediately with a highly redacted purchase order with the Harris Corp. (maker of the “Stingray”), but the document is unintelligible because of the redacting and price of the unit. SD6 has followed-up for clarification and the remainder of the information requested. The Sheriff Department responded by saying they had no responsive documents.
Also, SD6 News is still waiting for an FBI Freedom of Information Act (FOIA) request for details about the Stingray device.
The CIA did not respond to requests for this article.
Prior “San Diego police acknowledge Stingray cell phone spying” (Article here)
Previous story “CIA/DOJ spy on cell phones within the US” (Link here)
(Originally published March 15, 2015)
© Copyright 2015 Kimberly Dvorak All Rights Reserved.