Washington, D.C. – After initially attempting to hide their use of the cell site simulator devices, commonly referred to as a Stingray, the U.S. Department of Justice has announced a number of critical policy revisions regarding the device.
By: Jay Syrmopoulos
This article first appeared at FreeThoughtProject.
The new guidelines, implemented September 3, require all federal law enforcement agencies, as well as all state and local agencies working in concert with a federal investigation, to obtain a search warrant from a judge before being allowed to deploy the device.
These much-needed policy changes came after journalists and activists worked tirelessly to investigate and expose the use of these devices, often without a warrant, by federal and state law enforcement agencies.
The Stingray device works by mimicking a legitimate cell phone tower, thus fooling cell phones in the area into connecting to the police controlled device. This enables law enforcement to access the unique identifying number for every phone in the proximity of the instrument, and then track a phone’s location in real-time.
Additionally, the devices have the capability to route the traffic of all phones in the vicinity through the Stingray. This allows agents the option of recording entire calls, intercepting texts, or even selectively denying service to particular phones.
Investigations across the nation have revealed the extensive use of the technology by federal, state and local law enforcement. It was subsequently revealed that state and local law enforcement agencies were allowed to procure this technology from the FBI and Harris Corporation, makers of the Stingray and related devices. However, they were bound by strict non-disclosure agreements, which prevented any modicum of transparency or accountability.
Think about that for a second.
The FBI and Harris Corporation gave the police a device that can intercept and record people’s phone calls, text messages and data, but only allowed them the technology if they signed an agreement that didn’t allow them to tell anyone that they were using the device, including judges.
Does this sound like a justice system??
In holding to their agreements, law enforcement went so far to protect the secret use of the device that there were numerous cases in which charges were dropped rather than answer a judge’s questions that would potentially reveal the use of the device.
According to the Electronic Frontier Foundation:
What today’s changes do:
• Federal law enforcement agents will be required to obtain a search warrant supported by probable cause prior to using a cell-site simulator in a law enforcement context. A search warrant requires a showing by the agent, under oath, that meets one of the highest standards in federal law. This incredibly important change is precisely what EFF has been asking for.
• Agents will only be allowed to use Stingrays in “pen register” mode, meaning the devices will collect only the basic location of the phone and the numbers of incoming and outgoing calls and texts. Agents will not be allowed to collect the content of your communications — like your emails or text messages — even if the cell-site simulator is capable of such collection.
• Finally, Agencies must delete data on users not targeted in either 24 hours or 30 days, depending on context.
What today’s changes don’t do:
• The new policy isn’t law and doesn’t provide any remedy to people whose data is swept up by Stingrays operated without a warrant. Indeed, it won’t even act to keep evidence collected in violation of the policy out of court (this is known as suppression).
• The policy doesn’t apply to the use of Stingrays outside of the criminal investigation context. For instance, when federal agents use cell-site simulators for “national security” purposes, they won’t be required to obtain a warrant by the terms of this policy.
• There are two enumerated exceptions to the warrant requirement in today’s guidance. The first is the traditional “exigent circumstances” exception, common all warrant requirements and not particularly worrisome. But the second exception listed in today’s policy for undefined “exceptional circumstances” is potentially problematic. We have no idea what that means, so we’re waiting to see if and how the exception will be used.
While this is a good first step towards providing transparency and accountability in the use of this technology, the fact that directive covers only federal agencies remains problematic.
Many state and local law enforcement agencies continue to attempt to conceal their use of the devices in criminal investigations. There is still virtually nothing, aside from vigilant judges, keeping the warrantless evidence gathered using the Stingray from being presented as evidence in state courts.
Without there being any established law regulating the device’s use, compliance with the Fourth Amendment’s warrant requirement seems like an extremely arbitrary choice, without any real enforcement mechanism to hold violators accountable.
The only way to control the rampant and unconstitutional use of this, and similar technologies, is to make an example out of police agencies that choose to flout the Fourth Amendment. They need to be held criminally liable under the law when using the device illicitly or attempting to conceal its use from trial court judges.
The warrant requirement should include all state and local law enforcement agencies around the country, similar to that of Washington, which already has laws in place requiring a warrant.
The idea that we need a state law to tell the cops to follow the U.S. Constitution’s Fourth Amendment’s warrant requirement seems patently absurd.
Perhaps we need to ask ourselves a larger question; why does law enforcement feel as though they have a right violate innocent America’s constitutional right to be free from unreasonable search and seizure?
The time has come for law enforcement nationwide to get the message: if you want to use a Stingray, you need to get a warrant!
This article first appeared at FreeThoughtProject.