The military tech President Obama didn’t ban is also the most dangerous

The police’s war on civilians is still taking place behind the scenes.

After the protests turned into riots in Ferguson, Mo., last summer, it became abundantly clear that the surplus of military vehicles and weaponry from the wars in Iraq and Afghanistan had found their way onto the streets of middle America. Americans watched in awe as Ferguson police responded to protests and minor looting with armored vehicles and the same kind of tear gas used in war zones. Jackboots and assault rifles seemed to be the official uniform of what should have been a measured response by a mid-range police force. 

For many protesters, this widely circulated imagery of a military encampment was enough to incite deep-seated rage about what was already a tortured relationship between police and civilians.

As many news reports following Ferguson would make clear, the spread of military gear throughout America’s police forces was widespread and trickling down from the federal government itself. A 2014 story from ABC’s Luis Martinez and Colleen Curry referred to Ferguson police as a “small army,” tying it to the historic relationship between the government and the military. 

Jackboots and assault rifles seemed to be the official uniform of what should have been a measured response by a mid-range police force. 

“The distribution of military equipment to local law enforcement began in the 1990s to help agencies fight the so-called War on Drugs,” Martinez and Curry explain. “It was expanded after 9/11, with the creation of the Department of Homeland Security, to help law enforcement fight terror threats.”

As part of a long overdue effort to demilitarize America’s police force, President Obama announced new policies this week that will place heavy regulations and restrictions on what kinds of vehicles, armor, and weaponry the military is allowed to sell at a discount to state and local police departments. Banned equipment now includes camouflaged vehicles, grenades, high-scale weaponry, and even bayonets. Restrictions have also been placed on aircrafts, riot gear, and mobile command units, forcing police to seek federal permission before obtaining or selling such equipment.

These restrictions are an important step in healing the rift between police and the communities they swear to protect; however, they ignore a rather gaping loophole in federal security equipment that has quickly spread through local police departments. While Americans have become more wary of the federal government abusing their right to privacy, local police have been arming themselves with technology just as worrisome as a tank rolling down the street.

In all, police in 21 states have used Stingray devices to track and locate cell phones without the phone’s owner aware. The devices—roughly the size of a suitcase—locate cell phones by intercepting the signal that phone would normally send to a cell tower. Stingrays convince the phone it is talking with a secure cell network in order to collect information from the cell signal, including the phone’s precise location. They collect the cell signals of phones within a given range, meaning police can collect bulk data from entire city blocks.

They ignore a rather gaping loophole in federal security equipment that has quickly spread through local police departments.

If that sounds familiar, it’s because the technology is eerily similar to the kinds of privacy-violating tactics we’ve become used to hearing from leaked documents about the National Security Agency. Just as the Pentagon has regifted their devices to small-town cops, the Federal Bureau of Investigation and various branches of the United States intelligence sector have begun shipping Stingray devices to police departments across the country, along with non-disclosure agreements protecting police from defending these tools’ use against the public, lawmakers, and even judges.

In fact, the FBI and police have even offered criminals plea deals in order to prevent their lawyers from demanding to see recorded use of Stingrays. In Florida, two small-time crooks who robbed a weed dealer with a BB gun were offered a cushy probation-only deal in February; the catch was that the pair had to halt their lawyers’ investigation into whether or not police had used Stingrays to capture them. 

According to a CNN story in March, one federal judge in Erie County, N.Y., reported an attempted deal between the FBI and local police to drop criminal charges against a suspect entirely rather than reveal any details about the Stingray program.

It’s this intense level of secrecy that has likely protected the device from becoming the target of public derision like the military gear cited by Obama in his new regulations. As President Obama said, the armored vehicles and heavy artillery seen in Ferguson last year is “made for the battlefield” and might “alienate and intimidate local residents and may send the wrong message.” 

But that’s only because of the visibility of such equipment. While that should never be ignored, the hidden encroachment on our daily privacy has been totally ignored by the president’s restrictions; this is likely because it’s out-of-sight, out-of-mind even for the few Americans that know of its existence.

It’s this intense level of secrecy that has likely protected the device from becoming the target of public derision.

It’s perhaps absurd to believe a president who has spied on more American phone records than any before him would care to implement restrictions on how local and state law enforcement should go about doing the same thing. According to a report from the ACLU, Stingrays are in use by the FBI, the NSA, the Drug Enforcement Administration, the Secret Service, and all five branches of the military. 

Thus, it’s abundantly clear the warrantless use of these devices isn’t keeping Barack Obama awake at night as a moral or legal quandary. Why should he feel the need to justify or restrict their use among police?

Typically, any electronic surveillance conducted by a police department requires judicial oversight and a warrant granted by a judge. And while the program has been justified by police and federal agents as a tool for finding and preventing terrorism, Stingrays have become a regular part of policing in just about any case wherein it could make the cops’ jobs easier. In Tallahassee, police confessed to using Stingrays over 200 times in a four-year period. According to LA Weekly, the Los Angeles Police Department uses Stingrays for 13 percent of every investigation they encounter. 

In only one of the 21 states wherein Stingrays have been used by police have any restrictions been implemented—the Florida Supreme Court ruled in 2014 that police must obtain a warrant before using Stingrays.

As has recently been the case for privacy advocates, the judicial branch may be our last, best hope. Although the president is concerned about turning America’s streets into a battlefield, his policies have shown that he’s fine with keeping the war alive behind the scenes. Unfortunately, the best chance we have to see Stingray finally get the regulation Americans deserve is the power of those on the bench, rather than the makeshift leadership of our president.

Gillian Branstetter is a social commentator with a focus on the intersection of technology, security, and politics. Her work has appeared in the Washington Post, Business Insider, Salon, the Week, and xoJane. She attended Pennsylvania State University. Follow her on Twitter @GillBranstetter

Photo via WEBN-TV/Flickr (CC BY ND 2.0)

Gillian Branstetter

Gillian Branstetter

Gillian Branstetter is a reporter and essayist who specializes in the intersection of technology, LGBTQ issues, and privacy. In April 2018, she joined the National Center for Transgender Equality as a media relations manager.