An article in yesterday’s New York Times further reveals the increasing ubiquitous use of governmental surveillance of cell phones of law-abiding citizens—belying the President’s commitment to unprecedented accountability, openness, and transparency in government:
My Administration is committed to creating an unprecedented level of openness in Government. We wi
ll work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government. Transparency promotes accountability and provides information for citizens about what their Government is doing. . . . My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use (White House, 2008).
In fact, the Obama administration is establishing itself as the most secret, least-open, and most non-transparent administration in our nation’s history.
The privacy concerns regarding the use of StingRays are important because their use also captures information about innocent citizens. This technology cloaked in secrecy, the public lacks any substantive information regarding the technology or the use of data collected about law-abiding citizens. Ironically, sometimes the use of StingRays benefits criminals instead of innocent civilians. In Florida, a StingRay was used to find a man accused of armed robbery. But when the local police refused to provide any information about StingRay requested by the defendant’s defense lawyer, the state agreed to drop the charge to petty theft (Wall Street Journal). Moreover, violating ethical practices, ”federal officials are instructing local law enforcement , to the point of perjuring themselves by hiding that information from local judges and prosecutors” (Washington Post).
The federal and local government contends that any information about StingRay technology or its use would permit bad guys to access its workings, negating its usefulness. So to prevent disclosure, the Harris Corporation, its maker, and the FBI agreed not to disclose any information about this technology—not even the nondisclosure agreement! Of course, the same argument could be made to maintain the secrecy of any technology or weapon used by the military or law enforcement.
At stake in the use of StingRays is the viability of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (U.S. Constitution).
The problem with using StingRays is the assumption that their use does not constitute a search and corresponding invasion of privacy: “[StingRays] now give local police all of the information that any particular cell tower has, without having to bother with a subpoena to cellphone companies. It’s this dragnet aspect of Stingrays—that police can simply drive to neighborhoods and log calls, numbers, and locations—that has a terrifying effect on privacy” (Slate).
Addendum. For 30 years, the Office of Administration in the White House has responded to requests for records—until yesterday. The Obama administration declared this office exempt from the Freedom of Information Act, another blow to governmental transparency and a repudiation of the President’s pledge: “My administration is committed to creating an unprecedented level of openness in Government.”
