Craig Estes is about as conservative as they come in the Texas Senate. He helped kill Sen. Wendy Davis' midnight filibuster over abortion regulations. The "Craig on the issues" portion of his website features photos of placards blaring, "Pro-Life, Pro-God, Pro-Gun," "No! Amnesty," and "Must Show ID To Vote." He's not the kind of politician you'd expect to heed to warnings from the American Civil Liberties Union, a group that, at least in conservative circles, has long been synonymous with opposition to the death penalty, support for gay rights and same-sex marriage, and defense of abortion rights.
But Estes listened earnestly at a senate committee hearing last week as an ACLU expert warned lawmakers of surveillance-state tactics trickling down from the feds to local police departments. The testimony that appeared to most rattle Estes came from Chris Soghoian, chief technologist with the ACLU's Speech, Privacy and Technology Project, on cell phone-tracking technology that's made it into the hands of local cops. These so-called "cell site simulators" or "IMSI catchers" essentially mimic a cell-phone tower, Soghoian explained, sending out a signal that tricks every phone in the area into reporting back its location and other identifying information, which cops can then scoop up.
And, Soghoian warned, the Houston Police Department is one of only two law enforcement agencies that we know of in the state that has one (the other being the Fort Worth Police Department). While HPD is mum on the issue (department reps wouldn't respond to specific questions last week), here's what we do know, thanks to public records and a document obtained by the ACLU.
In August 2007, an HPD homicide sergeant sent a letter to the Federal Communications Commission, on City of Houston letterhead, asking the commission to grant Harris Corporation - until recently the only company manufacturing this technology - authorization to sell the city a so-called "StingRay" product.
(A quick aside: Also until recently, these devices have all gone by some esoteric nautical-sounding name, like StingRay, Harpoon, KingFish, and RayFish. The manufacturer has evidently moved on to ominous-sounding weather systems; one of the newest models is called a HailStorm.)
Harris Corp needed FCC approval to sell the device to HPD, since these cell-phone interceptors interfere with, well...cell-phone networks, and are thus regulated under federal law. By November 2007, City Council minutes show HPD asked for and got approval to use $271,430 in grant funding to buy "communications tracking software and hardware" from Harris Corp. In June 2011, council minutes show HPD got approval to spend another $399,107 in grant funding to buy more "covert surveillance equipment, software and training" from Harris Corp. In October 2012, HPD spent another $100,200 on "RayFish covert surveillance equipment software and annual maintenance for the Houston Police Department."
The technology "allows for very fine-grain location detection," says Nathan Wessler, a staff attorney with the ACLU's Speech, Privacy and Technology Project. "We've seen police in some states use it to identify a particular apartment in a large apartment building. It can certainly pick out individual houses." Cops can even use it like a metal detector: place the device in a police van or truck, drive it to the general area where you think a suspect might be hiding, and wait for suspect's cell phone to ping back to the fake cell-phone tower signal coming from the truck. "Then they can drive around in smaller concentric circles until they have it pinned down," Wessler said.
Wessler says these cell site simulators can gather detailed information about both specific individuals and large groups of people. "The way this technology works is it collects information about the identity and location from hundreds or even thousands of innocent bystanders' phones in the process," he said. "It starts to look a whole lot like indiscriminate dragnet surveillance ... people's Fourth Amendment rights are being implicated."
That's troubling to the ACLU primarily because we know so very little about how local cops use these devices or what judicial hoops they do, or don't, have to jump through to deploy a "StingRay" or "RayFish" or "HailStorm" on an unsuspecting neighborhood.
If you know precisely where someone's been and who they've been calling, that's as or maybe even more sensitive than the actual contents of a phone call, Wessler says. Hence why the ACLU and groups like the Electronic Frontier Foundation say use of these cell-phone interceptors without a warrant is tantamount to an unlawful search. (See the ACLU's running tab of local law enforcement agencies across the country who have this technology.)
"It's important to know what kind of legal process Houston police think they need to use in order to deploy these StingRay devices," Wessler said.
Not surprisingly, HPD isn't saying much. "We did buy the equipment listed in the City Council agenda, but we don't discuss our strategic operations or equipment," said HPD spokeswoman Jodi Silva. "I can tell you that we follow laws and guidelines set forth on the use of the equipment."
The problem is it's not clear exactly what those "laws and guidelines" are at this point. Wessler insists the surveillance technology has outpaced the law. Meanwhile, as we wrote last week, there's already a bizarre debate forming at the Lege over whether local cops should be required to get a search warrant every they get this so-called metadata from a cell-phone provider. While local law enforcement reps - including with HPD and the Harris County DA's office - insist they already need search warrants under their interpretation of state law, defense attorneys and privacy advocates warn that warrantless metadata searches are still perfectly legal in the State of Texas.
Which makes any "laws and guidelines" for cell-phone interceptors even more muddy. If police don't need a warrant to get the data from a company, what's to stop them from scooping it up themselves without a warrant?
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That was Soghoian's warning last week to Sen. Estes and the rest of the State Affairs Committee. Looking at Estes, he said:
"If police are going to be collecting information about a large number of innocent Texans, and they may not be destroying the information when they're done with it, and they're definitely not notifying those individuals after their information has been collected, that seems like the thing that your committee and other committees in this building should be aware of and should be explicitly legislating rather than let happen without your knowledge and consent."
Estes' response sounded sincere: "Seems like you're going to be a tremendous resource as we go forward."
"I hope so," Soghoian said.