Charlotte city manager defends secret cell phone surveillance by police

Charlotte City Manager Ron Carlee on Thursday strongly defended Charlotte-Mecklenburg Police Department’s secret surveillance of cellphones and other wireless devices, saying officers do not eavesdrop on conversations or store data from innocent people.

In a publicly released memo to the City Council, Carlee said Charlotte-Mecklenburg police should continue to use portable equipment that imitates a cell tower. Such devices can provide officers with the serial numbers, location and other information about nearby phones and laptop computers and tablets that connect to a cellular network.

“It is my conclusion that procedures in place by CMPD are designed to protect constitutional rights and that to deny CMPD the use of this modern investigatory tool would not be in the best interest of public safety for the Charlotte-Mecklenburg community,” Carlee said.

Carlee said that “CMPD does not identify the phone numbers of nearby phones or the owners of nearby phones, laptop computers, or tablets.”

But his statement does not address the equipment’s ability to capture information from multiple phones at once. A Superior Court judge also disagreed with the city’s assurances that it shows probable cause to the courts before using the equipment.

Attorneys for privacy groups told the Observer they believe cell-site simulators can be configured to collect voice, text and other data from wireless devices. The public, they say, has no way of knowing how CMPD and other local police agencies nationwide use the devices because they sign nondisclosure agreements with the FBI and the manufacturer.

“Technologically, (cell-site simulators) absolutely capture data from other people’s phones,” said Hanni Fakhoury, an attorney for the Electronic Frontier Foundation, a San Francisco-based privacy group. “That’s how the damn thing works. The only way it works is by scanning the cell phones in the area.”

At a recent public conference on constitutional rights at UNC Charlotte, CMPD Detective Brent Foushee described briefly how cell-site simulators operate.

“If I go to an apartment complex, it gets the numbers associated with the apartment,” Foushee said in response to a question from a student. “A big list of phone numbers. Not names, addresses, it’s just phone numbers.”

Judge disagrees

On Thursday, the city also released a memo from Police Chief Rodney Monroe, saying his department is “mindful of our community’s constitutional rights while ensuring public safety.”

Monroe said CMPD must seek a court order from a Superior Court judge for officers to use the equipment during an investigation.

He wrote that the judge finds “probable cause” before granting permission – the same process CMPD uses to obtain search warrants.

But that’s not accurate, Mecklenburg Senior Resident Superior Court Judge Richard Boner told the Observer, when asked to respond to the city’s statements. Boner said he has approved hundreds of CMPD requests.

Boner said cell-site simulators are similar to “pen registers,” which meet a much lower legal standard than probable cause needed to obtain a search warrant. Pen registers trace signals from phones, but do not capture their contents.

When police ask to use the simulators, Boner said, the department only needs to show that cell phone information is relevant to the investigation.

That, said Nathan Freed Wessler, an attorney for the American Civil Liberties Union, is “an extraordinarily easy standard to meet.” He argues that police should be required to get search warrants before using such intrusive surveillance.

Lack of transparency

Statements from Carlee and Monroe follow an Observer report Sunday that revealed how officers for years secretly tracked suspects in serious crimes such as murders, robberies and kidnappings by using cell-site simulators. The devices are commonly known by names such as StingRay, Hailstorm or TriggerFish.

Civil liberties groups argue that the tactics violate the Constitution’s protections against unreasonable search and seizure.

In response to the Observer’s reporting, some City Council members said they wanted more information about the surveillance. Members John Autry and Claire Fallon questioned whether it is legal.

They could not be reached for comment Thursday.

Council members have said they do not remember voting unanimously without debate in 2012 to spend about $357,000 to upgrade equipment CMPD had owned since 2006.

Carlee said officials were briefed in closed session about the technology and other security issues related to the Democratic National Convention.

Councilman Al Austin said Thursday that he does not believe that police invade innocent citizens’ privacy. Austin said that officers need the technology to keep the city safe.

“We can’t send them out there with slingshots and pop guns,” he said. “As long as you are keeping your nose clean, you shouldn’t have a problem.”

Carlee and Monroe did not respond to interview requests this week. City officials said they would not be available to comment after the release of Thursday’s memos.

When asked to clarify what Carlee meant when he said CMPD does not identify the phone numbers for innocent people, a city spokeswoman refused to answer.

George Laughrun, a prominent Charlotte defense attorney, said he had heard rumors that CMPD purchased a cell-site simulator in preparation for the Democratic National Convention, but did not know for sure until he read the Observer story.

Laughrun said it is disturbing the surveillance has remained secret for years because that meant defense attorneys could not learn about, and possibly challenge, CMPD’s investigation methods.

The Constitution tries to ensure fair trials by allowing the defense to examine all the evidence during the discovery process, Laughrun said.

He said there is also no way to know if police accidentally identified a suspect while targeting someone else with the equipment.

“It’s astronomical, the potential for abuse,” Laughrun said. “You have a blank check search warrant.”

This story was originally published October 23, 2014 at 9:19 PM with the headline "Charlotte city manager defends secret cell phone surveillance by police."