Politics & Government

Texas lawmakers’ bills would limit cellphone trackers

This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. A police officer testified April 8 that the Baltimore Police Department has used Hailstorm, a upgraded version of the StringRay surveillance device, 4,300 times and believes it is under orders by the U.S. government to withhold evidence from criminal trials and ignore subpoenas in cases where the device is used.
This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. A police officer testified April 8 that the Baltimore Police Department has used Hailstorm, a upgraded version of the StringRay surveillance device, 4,300 times and believes it is under orders by the U.S. government to withhold evidence from criminal trials and ignore subpoenas in cases where the device is used. AP

Few will talk about it.

But Texas is one of more than a dozen states where law enforcers use the “stingray” cellphone-tracking technology.

Despite growing concerns about local law enforcement spying on residents’ cellphones, cities nationwide — including Fort Worth — own this technology, which basically works as a tracking system, tricking cellphones into believing it’s a cell tower to give law enforcers the ability to find a phone user and gather data.

It’s a hush-hush topic, as even President Barack Obama’s administration has been telling police nationwide not to give out details about the stingray technology, which is used for such things as tracking cellphones used by suspects in criminal investigations.

But some Texas lawmakers refuse to remain mum on the issue and want to require investigators to get legal clearance before engaging in what critics say is spying on the public.

Two bills in the Legislature would require law enforcers to get a warrant before using this technology to track people and gather data from their cellphones.

“It is critical that we have safeguards in place to protect the privacy rights of Texans,” said state Sen. Craig Estes, R-Wichita Falls. “The safety of Texans and their interests have been, and always will be, my greatest concern.

“Our citizens should not be concerned that their privacy is being invaded any time they want to use a cell phone.”

Stingray equipment, also known as “cell site simulators,” is in use in at least 21 states and the District of Columbia, according to the American Civil Liberties Union.

In Texas, the Fort Worth Police Department and the Houston Police Department are among the agencies known to buy the suitcase-size stingray device, which can generally fit in a vehicle so it can be moved to any neighborhood to gather data such as the location of a phone, numbers dialed and length of calls.

“Stingrays are extremely useful tools in the fight against terrorism here in the United States and have been used successfully by the FBI and other law enforcement organizations in the surveillance of potential and actual terrorists,” said Mark P. Jones, a political science professor at Rice University in Houston.

“When local police departments initially purchased stingray devices, they did so based primarily on the argument that local law enforcement also needed to have the same tools as federal agencies to counter potential terrorist threats in cities throughout the country.”

Right now, a gap in Texas law lets law enforcers gather such information without a warrant — which is a concern to critics.

The two bills in Texas would change that and require a warrant except in emergencies to gather that information.

“We need a 21st century Fourth Amendment and these bills will get us closer to that,” said Terri Burke, executive director of the ACLU of Texas. “The Fourth Amendment protects us from unreasonable searches, … which has always been interpreted as the knock on the door at your house.

“Technological advances have now made that knock on your door a ping on your cellphone.”

Texas surveillance

The Associated Press has reported that “the Obama administration is asking agencies to withhold common information about the equipment, such as how the technology is used and how to turn it on.”

Police departments nationwide have been quiet about the surveillance equipment they own.

The use of stingray equipment in Texas most recently made news last month when Houston police asked city leaders to use nearly $500,000 in federal grant money to buy stingray equipment.

Three years ago in Fort Worth, city officials approved buying a $184,000 portable system to track cellphones.

Police then and now have said little about the equipment.

The KingFish System, made by the Florida-based Harris Corp., is designed to help police in “locating, identifying, developing probable cause and apprehending priority offenders,” according to a 2012 Fort Worth document.

“Fort Worth police will continue to ensure private citizens’ constitutional rights as protected by securing search warrants and court orders based on probably cause,” police said that year in a statement.

“Only in exigent circumstances such as kidnappings, child abductions, missing persons [such as an Alzheimer’s patient] or in circumstances regarding immediate action in order to preserve life would we use without first obtaining a warrant,” police said in a 2012 statement. “In cases involving exigent circumstances, we still obtain warrants and/or court orders as soon as possible.”

A memo at the time said Fort Worth police had used the technology and received training for it. The KingFish units are mobile, which lets them be mounted on a vehicle or carried by officers in the field.

Fort Worth Cpl. Tracey Knight, a police spokeswoman, declined to comment for this report.

Judicial concerns

Secrecy surrounds the technology at all levels, said Brian Owsley, a former federal magistrate judge in Corpus Christi who will teach at the University of North Texas law school in Dallas this fall.

During his eight years as a magistrate judge in Corpus Christi, Owsley said, he received two requests by the federal government to use this equipment for cellphone searches.

Both were shrouded in secrecy, as officials asked for a “pen register” and a “trace and trap” to let them detect both outgoing and incoming calls from particular cellphones.

When Owsley asked fellow judges if they were familiar with the process, only a few said yes. And when he asked federal officials for more information regarding their requests, he didn’t get any response and ultimately dismissed their applications.

He said he is particularly glad to see legislation filed that could shine more light on the process.

“I’m happy with anything that requires a heightened standard for this,” he said. “It doesn’t address all the concerns I have, but it’s a positive step.”

Legislative proposals

Sens. Estes and Rodney Ellis, D-Houston, propose Senate Bill 942 to require law enforcers to get a warrant before gathering cellphone information, which some fear is being used to root out nonterroristic crimes.

It was referred to the State Affairs Committee and has not been scheduled for a hearing.

“I want to ensure that Texans are protected from warrantless invasions on their privacy,” Estes said. “This bill would close a serious gap in current law by recognizing that a mobile phone user’s location is also private.

“I look forward to pushing this through the legislative process to ensure that this law is updated.”

In the House, Rep. Dwayne Bohac, R-Houston, filed HB3165 to do the same. His bill was referred to the Emerging Issues in Texas Law Enforcement Select Committee and has not been scheduled for a hearing.

The proposals say that information gathered by a Stingray may not be used to help with an investigation by the federal government or officials in another state.

The bills are “in part the product of the growing controversy surrounding the use of stingrays without warrants, especially for surveillance that has nothing to do with the threat of terrorism,” said Jones, of Rice. “It is an issue that often unites libertarian-minded conservatives with civil-rights-minded liberals, with each group worried about the potential abuse of fourth amendment rights that can take place when Stingrays are used by police without first obtaining a warrant based on probable cause.”

Rep. Matt Krause, R-Fort Worth, said he believes the proposals are fair.

“I think it's perfectly reasonable for law enforcement to obtain a warrant before using the information captured by the stingrays in an investigation. It follows along the lines of Rep. Stickland’s amendment last [session] that said law enforcement had to get a warrant before searching emails. The warrants would be easy to obtain and ensure proper procedures were being followed in the gathering of evidence.”

Burke, of the ACLU, said it’s time for lawmakers to update these laws.

“Laws haven’t kept pace with technology,” she said. “These bills move us a long way down the road to where we need to be.”

Anna M. Tinsley, 817-390-7610

Twitter: @annatinsley

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