The US Marshals Service through its parent agency, the Department of Justice (DOJ), teamed with the Central Intelligence Agency to use technology that tricks cell phones into connecting to it in order to obtain data without warrants, new revelations from Edward Snowden reported by the Wall Street Journal show.
‘Dirtboxes’ or ‘Stingray’ surveillance technologies developed by private firms in collaboration with the CIA are capable of capturing thousands of moible exchanges at once by mimicking a cell tower which nearby cell phones connect to.
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 48 agencies in 20 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 the use of the technology by law enforcement agencies nationwide.
“[The new information about the CIA] certainly raises troubling questions,” ACLU lawyer Nathan Wessler said. “What legal authority are they using? Do they get warrants? If not, why? What are they doing to protect bystanders’ privacy?”
According to the Department of Justice, the US Marshals Service used the cellphone dragnet that knowingly scooped up thousands of phone conversations in an effort to conduct allegedly lawful ongoing criminal investigations.
The Journal reports that a Justice official privately admitted that there are cases in which investigators gained possession of information not covered by warrants.
A Justice Department spokesman explained that the US Marshals Service’s techniques are “carried out consistent with federal law, and are subject to court approval,” but the FBI recently claimed that search warrants aren’t required to deploy the technology.
The Supreme Court 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 last 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 has 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 can’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.