What do you get when you take a very segregated city with a history of high racial tension, give it a police department that is demonstrably racially biased against blacks, and arm those police with secret high-tech surveillance tools? The answer: Baltimore. This is a city where, through use of suitcase-size fake cellphone towers that can be used to track Baltimore residents, police disrupt the cellphone network on a regular basis, disproportionately—unfairly—focusing on black neighborhoods.
With all this in mind, on Tuesday I represented three national nonprofits in filing a complaint against the Baltimore City Police Department for its use of certain surveillance equipment that mimics cellular towers in order to track cellphones. That equipment, described as “cell site simulators” and often referred to in shorthand as “stingrays,” emulates real cell towers, sends out counterfeit registration signals to nearby cellphones, forces cellphones in the area to connect with it, and then enables law enforcement agents to catalog or track any cellphones within 200 meters—about a two-block radius. These devices are used by police departments around the country, but quite likely most heavily in Baltimore, and they have real downsides. They can cause disruptions to the cellular phone network, jam 911 and other emergency calls, and directly discourage First Amendment–protected speech and access to information.
Cell site simulators have been challenged in the past, primarily for Fourth Amendment violations when police have failed to get warrants to use the devices. Less has been said, however, about how these devices fare under the Communications Act—which, as we point out in our complaint, is not well. In order to masquerade as cell towers, cell site simulators transmit signals over the air to cellphones, just like real cell towers do. Unfortunately for the Baltimore City Police Department, federal law says you need a license to do that. The law also says you can’t interfere with legitimate communications between someone’s cellphone and the cellular network. Finally, the law directs the Federal Communications Commission to make emergency calling available, and to ensure that communications networks are available to all people equally, or at least that they are not discriminatorily only to some.
The FCC is going to have to do something about all of this, and soon. Interference with the cellular network—especially in an era when more than half of households no longer have landlines—is greatly concerning. But more than that, the FCC has the legal obligation to enforce the Communications Act, and this is a clear violation of the Communications Act. We’ve asked the FCC to stop Baltimore police from using these devices, and not to use them again unless and until they get the licenses they need under the law. Given the ways in which surveillance technology enhances police power, and in light of the recent Justice Department report demonstrating that the police are racially biased, asking the Baltimore Police to stop using the devices seems like a reasonable thing to ask for.
But what then? We’d like to see surveillance equipment specifically addressed in any consent decree reached between DOJ and the police of Baltimore or any other city over racially biased policing. And if police agencies also want the FCC to modify its rules to make licenses easier to obtain, as they might, the burden should be on law enforcement to explain clearly and compellingly to the public why we should support that, and how we can be confident the technology won’t continue to be used in a way that exacerbates racial disparities in society. From the days of slavery, to the Civil Rights Era, to today, communities of color have borne far more than their share of surveillance harms.
Also, future conversations between police and activists over racially biased policing simply must include a surveillance component. And conversations between police and activists about intrusive surveillance need to include a racial justice component. Because surveillance and racial justice are not two separate issues. These issues are one and the same, and we should scrutinize and treat them that way.
