Privacy in America died many decades ago, a reality I first witnessed during the 1970s. I worked as a diagnostician in a psychiatric medical group that provided psychotherapy to adults, adolescents, and children, as well as educational and speech services to children. Within three years of operation, however, staff members billed our principal health insurer for more services than it wanted to pay for. The insurer informed our medical director, “We are not going to continue to pay for the amount of services you are billing”—a threat that resulted in the director opening another office in a nearby county. The
insurer eventually attempted to close the practice altogether. One day, unannounced, a group of inspectors sent by the insurer appeared at our group’s main office. During that week, each page of each patient’s psychiatric medical record was photocopied and taken to the insurer’s home office for intense medical review—and each new service provided by a staff member was automatically designated for medical review. During the subsequent six months, no payment was received from this insurer (several hundred thousand dollars) for any service provided by any staff member.
Purportedly private medical information can now be bought online: “Your doctor’s name, your past illnesses and medical history, even the kind of medicine you take—these are the types of personal details for sale in a multimillion dollar underground market” (Nguyen, Nious, & Carroll, 2013). Moreover, states commonly sell medical data to help finance public health studies, a practice permitted by federal law (Robertson, 2013): “Twelve of the most populous U.S. states generated $1.91 million from 1,698 data sales in 2011, the latest year for which figures are available.”
Today, surveillance cameras and metal detectors are everywhere. Online hackers are ubiquitous, eliminating any certain online privacy, whether we access the web at home or at Starbucks. Vigilant Solutions in Livermore, California has amassed a national database to track automobile license plates, widely accessed by police departments nationwide—but a practice that police departments often deny or refuse to acknowledge. A closely guarded technology, originally intended for use against terrorists, is increasingly used by police departments, a technology that blatantly invades the lives of law-abiding citizens: cell site simulators. Also known as Stingrays or IMIS catchers, these devices mimic cell phone towers, tricking nearby cell phones to transmit their locations and identify the phone’s cell number and serial number. Does the Anaheim Police Department (APD) use Stingrays? In all likelihood, yes.
Two weeks ago, I filed a request with APD to ask whether it has ever used or purchased Stingrays or developed guidelines for the use of cell site simulators. In previous requests to APD, I received answers to questions within a few days. Not receiving a response after 10 days, I telephoned APD to ask my questions. The response I received: “No comment.” The officer told me I had forwarded my record request to the wrong department, that I should make the request to the City Clerk.
Last week, I submitted a public record request to Anaheim’s City Clerk. Today, I received a response, but again from the APD. The City Clerk redirected my request to APD. The officer’s response is an object lesson in gobbledygook:
“The infromation [sic] you have reqeusted [sic] is exempt from disclosure pursuant to the following provisions of the Public Records Act:
- The records are subject to the Trade Secret Privilege (Evidence Code §1060 and Government Code §6254(k));
- The records are subject to the Official Information Privilege (Evidence Code §§1040(b)(2), 1041(a)(2));
- Documents reflecting police techniques or “security procedures” are expressly exempt from disclosure pursuant to Government Code §6254(f); and
- The records are subject to the public interest exemption provided by Government Code §6255.”
I feel confident concluding that Stingray technology is surreptitiously used by the APD and that the department is following an FBI directive not to disclose its use and honoring an agreement with the manufacturer of the technology not to disclose any information about the hardware or its use. Stingrays are an invasive technology now used by many police departments (e.g., Los Angeles, San Diego, San Jose, and San Francisco). This equipment is expensive. The San Jose Police Department reportedly paid more then $400,000 in 2013 for its purchase and officer training, although federal money may have paid for both.
Why is it important for the public to know about this intrusive, surreptitious, and unregulated technology? To begin, the Constitution requires the police to obtain a warrant before surveillance can proceed. The secret use of Stingrays, in addition to violating the Fourth Amendment, lacks accountability, oversight, and transparency. Movements of innocent civilians are tracked inside their homes, including the monitoring of personal conversations. Data are captured from all cellphones and other devices near a cell site simulator—whether active or inactive. More advanced Stingrays can disable cell phones.
To date, federal, state, and local law enforcement agencies have argued that the use of Stingrays does not violate the Constitution—and that Americans should not expect any privacy when using a cell phone, even at home, or when using any electronic device connected to a cell tower. Although many Americans cling to a fading hope in the honesty, integrity, and transparency of its government and elected officials, as years go by the words of Dr. Gregory House seem closer to the truth: “Everybody lies.”
