Despite the FBI saying earlier this year that search warrants aren’t required to deploy data interception technologies in public places, the Department of Justice said Thursday that federal agents must now obtain warrants in most circumstances.
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 53 agencies in 21 states and the District of Columbia that own stingrays, but because many agencies continue to shroud their purchase and use in secrecy, much is still unknown regarding their deployment by law enforcement agencies nationwide.
Not only can stingrays be used to pinpoint location, but they can also be used to intercept calls and text messages. Once deployed, the devices intercept data from a target phone as well as information from other phones within the vicinity.
The new DOJ policy, which takes effect immediately, applies to its agencies, including the FBI, the Bureau of Alcohol, Tobacco and Firearms (ATF), the Drug Enforcement Administration, and the United States Marshals Service and others.
“Cell-site simulator technology has been instrumental in aiding law enforcement in a broad array of investigations, including kidnappings, fugitive investigations and complicated narcotics cases,” Deputy Attorney General Sally Quillian Yates said. “This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals’ privacy and civil liberties.”
In addition to imposing the new warrant requirement, the seven-page policy change also requires DOJ officials to delete data of non-target phones that is collected by accident, and annually report how often stingrays are used.
“I am happy that they acknowledge the problem of information and data of third-parties,”former federal judge, and current law professor at the University of North Texas Brian Owsley said. “We will have to see how that problem is addressed on a practical level to know how it is going. They should ensure that they notify the third-parties whose data is captured.”
The Supreme Court has ruled that 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 wrote, “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 didn’t overturn the Fifth Circuit ruling because of their separate jurisdictions – and while Washington State joined Virginia, Minnesota and Utah in imposing a warrant requirement at the state level for using devices like stingrays earlier this year – the privacy question is still far from decided across the country.
“It’s a welcome and overdue first step, but it is just a first step,” ACLU of Northern California attorney Linda Lye said of the DOJ move. “It doesn’t cover non-DOJ entities and it doesn’t cover the locals.”
To see the police departments and agencies in your state that have been documented using stingrays CLICK HERE.