Raise the bar on cell surveillance

The Observer editorial board

The StingRay tracking device lets police  track your cellphone.
The StingRay tracking device lets police track your cellphone. Courtesy Harris Corp.

After years of secrecy, the Charlotte-Mecklenburg Police Department is finally opening up a bit concerning its closely-guarded cellphone surveillance program.

Last Sunday, the Observer’s Fred Clasen-Kelly reported that police are for the first time disclosing to judges when they plan to use a portable tool called a StingRay, which mimicks a cellphone tower to collect data such as location and serial numbers from devices connected to cellular networks.

CMPD has used the technology hundreds of times in recent years, but kept information about it so close that even judges signing court orders didn’t realize they were approving it.

CMPD’s move toward openness is a welcome change. But that’s not all that needs changing.

In seeking court orders approving their use of cell-site simulators, police have employed a 1988 state law ill-suited to that purpose. That law was designed to guide judges in authorizing telephone wiretaps and other surveillance against suspected drug dealers. It requires police to show only that the information they are seeking is relevant to an investigation.

That’s a far easier hurdle to clear than the standard required for a search warrant: a showing of probable cause to believe a crime has been committed and that the search will unearth proof of that crime. That’s the standard authorities should be held to for obtaining real-time cell tracking data using a tool that vacuums up data not only from suspects’ phones, but also from the devices of innocent citizens in their private homes and businesses.

Given that so much of our personal lives today are tied to our cellphones, we’d like to see state legislators pass a law that specifically applies the probable cause standard to police usage of cell-site simulators.

CMPD officials say they do establish probable cause, but Mecklenburg judges say they have issued orders based on the lower requirement in the 1988 wiretap law. Clearly the new technology has caused confusion, and needs to be clarified.

Movement in that direction is already happening on the federal level. The FBI has, with some exceptions, changed its policies to obtain search warrants before deploying cell-site simulators.

We see no reason why local law enforcement agencies shouldn’t embrace a similar approach to this issue.

Requiring local police to get search warrants would not stop them from using the technology. If there are narrow exceptions that should be discussed, let’s have that conversation.

Regardless, it seems clear the status quo is not acceptable. While we commend CMPD for moving in the right direction, the department still has a long way to go to achieve adequate transparency.

We urge state legislators to pass a reasonable, common-sense law that brings this powerful technology out of the shadows.