For the past five years, Erie County Sheriff’s officers have been using controversial cell phone spying technology largely without any judicial oversight or even internal procedures to protect citizens’ privacy. Last May, Erie County Sheriff Tim Howard told the county legislature’s Public Safety Committee that officers’ use of StingRay and KingFish machines was conducted under “judicial review” for all criminal matters. However, documents released after a New York Civil Liberties Union lawsuit against the Sheriff’s Office seem to show that the office did not develop internal procedures for the machines’ use until after local media began airing stories about the program. Further, officers appear to have only obtained a court order to use the StingRay once since obtaining it in 2010, and that single time was this past October – again, after the program became public.
The records of the use of cellular tracking technology and the lack of oversight revealed is troubling for a program that the Sheriff’s Office made every attempt to conceal the details and even the existence of. Reports show five times that officers used the StingRay without asserting any legal authority and without reporting the subject or the purpose of their surveillance. Other reports reveal instances where officers did not even identify who was using the device, rendering impossible any accountability for abuse of the technology that may have occurred. Others reveal seemingly physically impossible uses of the device dozens of miles from one another within a half-hour timeframe.
For all the opacity that Howard insists is necessary to prevent the “bad guys” from wising up to the sheriffs’ tactics, officers only reported four instances in the past five years when using the device resulted in bringing a person into custody.
In all, the documents appear to confirm exactly what civil libertarians might fear: an unaccountable, poorly documented program of high-tech surveillance that the Erie County Sheriff’s Office attempted to conceal from the public’s awareness to the point of misleading local elected officials about its details.
The records released after NYCLU’s court victory include a memorandum detailing policies for using the StingRay and 47 complaint information forms filled out by sheriff’s officers documenting instances of their use.
On June 14, 2014, Chief Scott R Patronik circulated a memo to all cellular tracking team members detailing cellular tracking procedures. This memo came after officers had used the technology 43 times according to the use records released yesterday and also after Howard’s testimony before the county legislature. Cellular tracking procedures do not instruct officers to get a warrant before using the device, which tricks nearby phones into sending it data about their location by mimicking a cell tower and is possibly capable of intercepting the content of communications, but the memo does specify that officers fill out a complaint information that must include “at a minimum” (emphasis added):
- Reference original CL# or other agency name / case number;
- Name and contact information of requestor;
- Brief summary of the purpose of the cellular tracking request. (Lost person, suicidal person, arrest warrant, etc);
- Describe the legal authority for tracking the cellular phone (exigent circumstances, arrest warrant, court order, etc). Exigent circumstances exist when there is an immediate danger of death or serious physical injury to a person;
- The phone number being tracked and the cellular provider for the number;
- Name of the person being tracked (if known); and
- If any data will be saved as evidence after the tracking session.
While reporting improved dramatically after Patronik’s memo, the records still fall far short of the minimum standards of the prescribed procedures. Only once, it appears, did officers obtain a court order before tracking a cell phone, and that order was for a pen register – a significantly less powerful device that records only the numbers dialed by a phone. No record specifies whether officers were saving any data after the tracking session, though the existence of this procedure belies Howard’s claim that data is always erased after the device’s use and that he doesn’t even know what the it is capable of.
It’s disturbing that the Sheriff’s Office owned and used their StingRay for four years without any internal guidelines governing that use and then only developed those guidelines in apparent response to a media investigation. After the county legislature’s Public Safety Committee heard Howard’s testimony, chairman Ed Rath III told WGRZ:
I think the residents can all rest assured now that the cell phone surveillance technology is properly being used and that our rights are not being violated. We have to believe our sheriff. We have to rest assured that he’s doing everything within the parameters of the law, and I think that we need to move on from this issue now.
The documents that the Sheriff’s Office released (again, only under compulsion by the court) would render Rath’s credulity laughable – if the story they told didn’t raise such spooky concerns.
Records generated by the cell phone tracking team before June 2014 flout every requirement laid out in Patronik’s memo. Legal authority for cellular tracking is rarely cited, the target and purpose of the tracking often are not specified, and sometimes the sheriffs did not even record which officer was using the device. Further, for all of Howard’s insistence that the secrecy around the program was to prevent “the criminal element” from being able to avoid detection, only four of the records indicate that the sheriffs’ use of the device resulted in bringing a person into custody, and one of those times was a suicidal person, not a suspected criminal.
Though none of the reports (short of the October 14, 2014 usage where sheriffs obtained a court order for a pen register) cite a specific legal authority for using the StingRay, there are 10 instances where officers indicated that they were aiding the US Marshals Violent Felony Warrant Squad. This seems to comport with the later-developed standard outlined in Patronik’s memo, but it is unclear whether it passes constitutional muster. Other instances may arguably fall under the “exigent circumstances” catch-all, such as the July 14, 2011 use to locate a suicidal person in Eden, but far more instances show nothing close to the “judicial review” that Howard told the legislature was in place.
Being as charitable as possible to the Sheriff’s Office by controlling for any cellular tracking where a violent crime or exigent circumstances were indicated (either specifically or implied by use in aid of homicide or violent felony units of other law enforcement agencies), officers utilized cell phone tracking 26 times in the past five years without any apparent legal authority – more than half of all uses.
Officers’ reports on the subject and purpose of cell phone tracking are similarly sparse. The records show that the cellular tracking team only identified the subject and purpose of their surveillance eight times since obtaining the technology. Mostly – 25 times out of 47 – officers just report which law enforcement agency they are assisting with cell tracking. Another seven reports identify the purpose of the surveillance, but not the subject, and two identify the subject of law enforcement surveillance, but not the purpose.
Troublingly, there are five instances where the Sheriff’s Office used the cell phone tracker without identifying who they were surveilling, the purpose of that surveillance, the legal authority supporting that surveillance, or even which law enforcement agency they were assisting.
In the first such instance, on September 16, 2010, Chief Scott Patronik and Officer Alan Rozansky reported that they were using the cellular tracking device in assistance of other police, but only disclosed that they were “GOING TO DARIAN [sic] STATE PARK.” Another time, on May 20, 2011, Patronik’s only remarks on his usage of the device were “CELLULAR TRACKING.”
The next recorded usage of the StingRay with no identification of the subject or purpose of surveillance is possibly a mistake. The complaint information was originally entered on June 13, 2012 as an accident on Route 400 in West Seneca, wherein Officer Jeffrey Ely was flagged down. Five minutes after the entry was initiated, it was changed from “ACCIDENT” to “ASSIST OTHER POLICE – CELLULAR TRACKING.” Ely does not appear in any other recorded uses of the StingRay.
Next, on September 29, 2013, two other officers, Russell Tyczka and Timothy Canaan, who do not appear on any other StingRay reports, are listed as using the device for cellular tracking at a Lower West Side address. Half an hour after the officers were dispatched, a note appears saying “BUFFALO POLICE WILL HANDLE NOW – PER CHIEF JOSLYN.” It is unclear whether Buffalo police were using the StingRay device itself or if this note is to indicate that cellular tracking was no longer requested.
The final incidence where the sheriffs tracked a cell phone without citing any legal authority or identifying the subject or purpose of their surveillance was on January 17, 2014. This record does not even disclose which officers were using the StingRay. The record seems to show significant altering after it was initiated. The record originally indicates that a warrant was served at 40 Delaware Ave (the Erie County Holding Center), but this was changed around 20 minutes later to “ASSIST OTHER POLICE – CELLULAR TRACKING.” The officer was originally entered as “Officer Akron,” changed seconds later to Andrew Birtch, changed again seconds later to Simon Biegasiewicz, whose entry was then deleted altogether. Then a note is added indicating “DISP GENITI DID CELLULAR PINGS FOR CL 003938.” Dispatcher Kimberly Geniti is not listed on any other records as using the StingRay. It is unclear whether she used it here and if so whether or not she was trained in using it to minimize the risk of violating the privacy of innocent citizens.
There are three other times when the sheriffs’ reports fail to indicate which member, if any, was using the cellular tracking technology.
The earliest, on September 9, 2012, only includes the detail “ASSISTING NYS POLICE, HOMOCIDE [sic].” Next, on November 15, 2012, sheriffs report assisting the Evans Police Department in tracking an 87-year-old with a history of dementia who had been missing “for the last several hours.” That heavily redacted report indicates that sheriffs tried to “ping the cell,” but were unable because it was off. Last, on September 20, 2013, an unknown Erie County Sheriff’s officer used the tracking device to “ASSIT [sic] THE MARSHALLS [sic].” No other detail was entered.
Other irregularities in the reports stand out as well.
Two reports of the same two sheriffs officers using the StingRay to track cell phones on October 19, 2012 appear within half an hour of another – one, at 11:49 am, in assistance of the US Marshals Service Felony Warrant Squad to track an individual and the second, at 12:20 pm, in assistance of the Jamestown Police Department 71 miles down the Thruway. It is possible that the US Marshals investigation also occurred in Chautauqua County; however, it seems exceedingly unlikely that that investigation would be wrapped up in the 30 minutes it took before the second instance of cellular surveillance occurred that day.
Overall, the picture painted by the court-ordered release of records is an ugly one. Judicial oversight appears minimal, when it occurred at all, and internal reporting was abysmal considering the invasive power provided by the technology. Reports seem to show that judicial review and even rudimentary internal best practices were only adopted after local media and elected officials began asking questions. Even then, the Sheriff misled and lied to the legislature about the StingRay’s capabilities and the oversight measures in place, raising the specter of terrorism to justify his agency’s spying and its NSA-like secrecy.
It is worth noting that much of the secrecy appears to have from from the federal government, which made the Sheriff’s Office sign a non-disclosure agreement, preventing the sheriff’s office from discussing the device with anyone, even other law enforcement agencies, going so far as to require the Sheriff’s office to seek dismissal of charges brought against suspects rather than admit that the program exists.
What is all this secrecy good for, though? So far the Sheriff appears to have brought a total of four people into custody using the StingRay – one of whom wasn’t even suspected of a crime. Is this public benefit worth the hundreds of thousands of dollars Erie County spent acquiring the StingRay and defending in court the Sheriff’s refusal to release relevant records? Is it worth the invasion of privacy of any cell phone user that happens to be within one mile of the StingRay when sheriffs are using it?
Note: I will be updating this post with links to source documents as I am able to separate individual reports from the pdf that they were released in. I will also update my reporting on individual uses of the StingRay as I learn more.
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