Documents show Boston police never obtained warrants to use cell-site simulators

Boston police have never obtained a warrant to use a cell site simulator device, commonly known as a “stingray,” according to documents released to the American Civil Liberties Union of Massachusetts and the nonprofit New England Center for Investigative Reporting.

The groups unveiled their findings Wednesday after filing a series of public records requests with the department about the controversial technology, which police can use to covertly intercept location data and other information from devices.

In all, the documents indicate the Boston Police Department used a stingray for its own investigations 11 times since 2009. On 11 other occasions, the department used them to assist other law enforcement agencies, but declined to detail them or say whether those agencies obtained warrants for use the of the device.

The department told the groups that investigators “relied on an exception to the warrant requirement, known as ‘exigent circumstances,’ or the emergency exception,’” in lieu of asking a judge for permission to use the devices, according to an ACLU release. But the civil rights group blasted the department for that rationale, writing that “the emergency exception to the warrant requirement is meant to be just that — something that is used only in true emergencies, such as when human life is imminently endangered.”

“Government secrecy about stingray surveillance doesn’t protect public safety,” Jessie Rossman, a staff attorney at the ACLU chapter, said in a statement. “Instead, secrecy allows government agencies to keep their use of the highly invasive spy tool out of the court system and hidden from the public.”

However, the department countered that it only used the stingray device as a measure of last resort in emergency situations. In a March letter to the ACLU, Nicole Taub — a staff attorney for the department — wrote that the department has only even used the equipment 19 times since “approximately 2014,” and 10 of those occasions involved supporting an outside agency.

“On each of these occasions, the equipment was used solely to narrow down the location of the suspect and/or person in danger,” Taub wrote.

In all, Taub claims the department used its stingray nine times to “assist outside agencies with drug investigations,” three times to find a missing person, two times in commercial robbery investigations and an additional two times to “assist human trafficking with child in danger.” She added that police used it on single occasions involving “firearm possession,” a fugitive and a murder.

But that information did little to placate the ACLU.

“Based on available information, it is impossible to evaluate the underlying circumstances of the cases in which the BPD used its stingray,” the ACLU wrote. “The BPD only provided three sparse incident reports, which are insufficient to show whether or not the emergency exception to the warrant requirement legitimately applied in each case.”

There’s no state law in Massachusetts requiring that police obtain a warrant to use the devices, though Police Commissioner William Evans told the public radio station WGBH in February that officers “normally” get warrants before employing the equipment.

The ACLU and the investigative reporting center also asked the department for documents detailing how police are trained to use the devices or department policy for doing so, yet they refused that request.

In an April letter, Taub wrote that “disclosing the specific circumstances in which this equipment can be utilized, as well as the process in place for doing so, would reveal sensitive technological and investigative capabilities possessed by the department.” She argues this would lead to people using “countermeasures” to evade detection and “potentially endanger the lives and physical safety of law enforcement officers.”

But, in a blog post, the ACLU charges that those claims “don’t pass the smell test” and are merely a way for the department to “shield its use of the device from constitutional litigation.”

“Are we to believe that people engaged in serious criminal activity in the year 2016 are unaware of the fact that law enforcement can track their movements through their cell phones?” the group wrote. “Anyone who has ever watched a cop show in the past five years knows the police can turn our phones into tracking devices, and law enforcement’s use of stingrays specifically has been major news.”

Indeed, judges in Maryland and New York have recently ruled evidence collected using the devices inadmissible in court because police didn’t obtain warrants first, claiming that the practice violates the Fourth Amendment.

Illinois Gov. Bruce Rauner signed a bill into law earlier this week requiring police to get a court order before using the devices, while Washington Gov. Jay Inslee did so last May. Lawmakers in states like Missouri, Maryland, Nebraska and Rhode Island also introduced bills on the subject in their legislative sessions this year, according to a search of legislative analytics FiscalNote’s database.

However, that number pales in comparison to the number of the states where police are using the devices. An analysis by the national ACLU found that state or local police in at least 21 states currently own stingrays.