For eight years, the Observer has learned, CMPD has owned portable equipment that mimics a cell tower and allows officers investigating serious crimes to learn the serial numbers, location and other information about nearby phones and laptop computers and tablets that connect to a cellular network.
The surveillance equipment, known by names such as StingRay, Hailstorm, AmberJack or TriggerFish, has been used by the military and federal agencies since the 1990s to hunt down terrorists.
But interviews and documents collected from the Observer’s Freedom of Information Act requests show CMPD uses the technology on a weekly basis to track suspects in violent felonies, kidnappings and missing persons cases.
Privacy groups say the surveillance is so intrusive that it violates the Constitution’s prohibition against unreasonable search and seizure. The technology, they say, is powerful enough to penetrate a home’s walls.
The groups note the public cannot find out precisely how many local police agencies own the technology, how often they use it or what happens to the phone data that officers capture from bystanders.
The Obama administration has ordered cities not to disclose information about the equipment. During a recent visit to Charlotte, FBI Director James Comey said his agency is trying to shield police tactics from criminals.
Local and state leaders told the Observer they were surprised CMPD captured phone data from innocent people, and some called for more transparency.
“The thought of police or another agency collecting data on communications devices is troubling,” Charlotte City Councilman John Autry said. “I understand the balance between security and privacy, but I think we should honor the privacy protection in the Constitution. … What happens to the data? Who sees it? Who has access to it?”
The Charlotte City Council voted unanimously without debate in 2012 to spend more than $357,000 to upgrade the cellphone surveillance technology for CMPD.
But council members interviewed recently said they did not remember voting to purchase the technology.
Councilwoman Claire Fallon said she and other council members should have demanded more information before they voted. She said it is easy to see how the technology could help catch lawbreakers, but she worries that police could invade people’s privacy.
“The bad thing is we’re losing so many of our rights,” Fallon said. “This country is founded on freedom and the right to privacy. We’re doing a lot of this under the premise of safety. I don’t know if it’s done any good.”
In written statements, Senior Assistant City Attorney Judith Emken defended how CMPD uses its cell-site simulator to track down suspects in serious and violent felonies. The equipment is an effective tool that helps make the city safer, Emken said.
CMPD does not capture the voice contents of phone calls or store data that is retrieved, Emken said.
The department seeks court orders from judges before officers use the equipment during an investigation, she said.
FBI and Department of Justice officials have said they consider the devices “pen registers,” which meet a lower legal standard to obtain than search warrants. Pen registers trace signals from phones but do not capture their contents.
Mecklenburg Senior Resident Superior Court Judge Richard Boner estimated he has approved hundreds of requests by police to use the equipment. Boner said he has never turned down the agency and is unaware of any instance in which the county’s six other Superior Court judges have rejected a CMPD request.
“They always have legitimate reasons,” Boner said.
Asked if he was concerned that cell-site simulators sweep up information from bystanders, Boner said that is an unavoidable part of investigating serious crimes such as drug trafficking, robbery and felony assaults.
“This is a legitimate need,” he said. “It serves a legitimate purpose. I think the police don’t abuse it.”
But privacy advocates said there is no way to tell whether judges are providing proper oversight. The court orders are sealed by judges, shielding the documents from public view.
Sealed records are often made available after cases have moved through the legal system. Disclosure is meant to provide transparency and protect public confidence in the courts.
But Boner said he could not recall unsealing any court orders for cell-site simulators.
Alan Butler, an attorney with the Electronic Privacy Information Center, a Washington-based civil liberties group, said that in general, some judges simply don’t understand how the technology works, and police often fail to provide them with information needed to make sound decisions.
“This is the perfect example of how the law has not kept up with technology,” Butler said. “The way (the police) have handled it has prevented meaningful judicial review.”
Heavily redacted documents released by Charlotte officials do not reveal details about the equipment the city purchased in 2012. Emken, the city attorney, said nondisclosure agreements with the vendor and FBI prevent her from releasing the information.
Privacy groups said military and federal agencies have used cell-site simulators since as early as the mid-1990s. They were used in the Iraq and Afghanistan wars, they said.
Local police agencies began acquiring the technology between 2006 and 2007 using federal grant money earmarked to fight terrorism.
Now, about 46 police departments nationwide own simulators, according to the American Civil Liberties Union. That includes Raleigh, Durham and Wilmington.
Documents show CMPD first obtained cell phone surveillance technology in 2006.
Earlier this year, the ACLU of Florida said it obtained a set of internal police emails in which a Sarasota Police Department sergeant wrote that his agency concealed the use of cell-site simulators at the request of the U.S. Marshals Service.
The sergeant wrote that, in reports and depositions, instead of revealing that simulators were used to gain information, officers said they “received information from a confidential source regarding the location of the suspect.”
Civil liberties advocates say the secrecy puts criminal defendants at a disadvantage. They have no chance to challenge the use of cell-site simulators without knowing whether they were used in their cases, they say.
In response to the Observer’s records request, Charlotte officials sent a sworn statement dated April 11, 2014, from Bradley Morrison, chief for the FBI’s tracking technology unit in Quantico, Va.
The FBI believes information about cell-site simulators is legally exempt from discovery, Morrison said. The details are shielded from public view because the technology is tied to national security, he said.
Revealing even seemingly innocuous details could give critical information about how to avoid detection, Morrison said.
Hanni Fakhoury, an attorney for the Electronic Frontier Foundation, disagrees. He said a defendant’s right to discovery is constitutionally protected.
“They have set up local (police) departments for discovery abuses,” Fakhoury said.
In March 2012, CMPD asked the City Council for permission to use federal grant money to replace its old cell-site simulator. Police said the equipment had become “outdated and ineffective,” records show. The request came as the department upgraded security before the Democratic National Convention.
Records show the city paid about $259,000 for hardware, about $94,000 for software and $4,000 for training.
City Council members voted to use a federal grant to purchase the equipment while approving routine items without deliberation.
The city purchased its equipment from Florida-based Harris Corp., a government contractor that manufactures the surveillance technology for federal agencies and local police departments. A spokesman for Harris Corp. declined to comment.
About a dozen states have adopted laws in the past two years that require police to get warrants or follow other rules if they want to obtain cell phone data.
North Carolina lawmakers asked to comment for this story said they had not heard of any plans to introduce legislation here regulating the use of simulators.
State Sen. Joel Ford, a Charlotte Democrat, called for CMPD to disclose more details about how it deploys the technology. Ford said he understands the city faces threats from terrorists and criminals but that the public deserves more information about such a critical issue.
“For us to gain more confidence and to give more trust, it is imperative we have transparency,” Ford said.
State Sen. Malcolm Graham, a Charlotte Democrat, said he is “skeptical” about police gathering data from cellphones of bystanders.
“It makes me ponder if we are doing the right thing,” Graham said. “It’s a delicate balance. If I had to err, I would err on the side of privacy.” Deputy Metro Editor Doug Miller contributed.
©2014 The Charlotte Observer (Charlotte, N.C.)