The FBI says search warrants aren’t required to deploy interception technologies that trick electronic devices like smartphones into connecting to them for the purposes of obtaining data.
In response, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and staffer Sen. Chuck Grassley (R-Iowa) wrote a letter to Attorney General Eric Holder and Homeland Security chief Jeh Johnson, maintaining they were “concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests” of Americans.
The lawmakers said:
According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice. Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology.
We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests.
The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them.
A USA Today investigation published late 2013 first revealed that at least 25 police departments across the country own and operate whats been dubbed a “Stingray.” Stingrays are portable devices that mimic a cell tower and trick nearby cell phones to connect to it.
The Stingray then captures the connected devices’ data, allowing law enforcement to track users’ locations. They are relatively small and easily transportable.
The ACLU has identified 46 agencies in 18 states and the District of Columbia that own stingrays, but because many agencies continue to shroud their purchase and use of stingrays in secrecy, much is still unknown regarding the use of stingrays by law enforcement agencies nationwide.
The Leahy, Grassley letter was prompted in part by a Wall Street Journal report released in November that said the Justice Department was deploying small airplanes equipped with cell-site simulators that enabled “investigators to scoop data from tens of thousands of cellphones in a single flight, collecting their identifying information and general location.”
In their letter, the lawmakers complained that little is known about how stingrays, and other ISMI catchers, are used by law enforcement agencies. The Harris Corp., a maker of the devices from Florida, includes non-disclosure clauses with buyers.
Baltimore authorities cited a non-disclosure agreement to a judge in November as their grounds for refusing to say how they tracked a suspect’s mobile phone. They eventually dropped charges rather than disclose their techniques.
The Obama Administration has repeatedly maintained that the public has no privacy in public places. It began making that argument as early as 2010, when it told a federal appeals court that the authorities should be allowed to affix GPS devices on vehicles and track a suspect’s every move without court authorization.
The Supreme Court however, has ruled using GPS devices to track people without warrants is unconstitutional. They have ruled that warrantless cellphone searches are unconstitutional. But they have not particularly looked at warantless cellphone tracking.
The Fifth Circuit Court of Appeals however, ruled last year that individuals have no reasonable expectation of privacy over their location data. The decision states that location data is a “business record” created by private companies with the implicit consent of cell phone users and therefore are not subject to privacy protections.
The rationale was that cell phone companies are not required by the government to create or retain this data and that citizens are not required by the government to carry or use cell phones, thus making this data subject to the Third Party Doctrine and removing any expectation of privacy.
A ruling in June of this year, from the 11th Circuit Court of Appeals, contradicted that ruling finding that police “must obtain a warrant before collecting cellphone location data.” The opinion affirms that acquiring records of what cell towers a phone is connected to, and when it was connected to them, constitutes a Fourth Amendment search.
In its reasoning, the court noted that while the Fourth Amendment has traditionally been applied to property rights, it’s gradually expanded to protect much more, including communications.
“In the 20th century, a second view gradually developed,” the court writes, “that is, that the Fourth Amendment guarantee protects the privacy rights of the people without respect to whether the alleged ‘search’ constituted a trespass against property rights.”
While the 11th Circuit ruling won’t overturn the Fifth Circuit ruling because of their separate jurisdictions, it adds critical precedent to a privacy question that’s still far from decided across the country.
To see the police departments in your state that have been documented using stingrays CLICK HERE.