Federal agents will no longer use ‘Stingray’ cellphone trackers without warrants

22 Oct 2015 | Author: | No comments yet »

DHS issues stingray policy and answers to Oversight Committee.

Last month, the Department of Justice announced that investigators would require a warrant to use a tool called a StingRay that mimics a cell tower to spy on phones. WASHINGTON — Immigration, Secret Service, and Homeland Security investigators must now obtain search warrants before using “Stingray” trackers that reveal the locations of scores of cellphone users, a Department of Homeland Security official told a House panel Wednesday.The policy, as the agency wrote, “provides guidance and establishes common principles for the use of cell-site simulators across DHS.” The policy applies to the “use of cell-site simulator technology inside the United States in furtherance of criminal investigations,” the memorandum states.

The new policy comes in response to growing criticism from members of Congress and civil liberties groups that law enforcement agencies have been violating Americans’ constitutional rights against unreasonable searches and seizures by secretly using Stingray technology without warrants. In the past, the government has been derided for picking up innocent citizens’ data while they’re sharing public spaces with criminal investigation targets. Under the new rules, which largely mirror those announced by the Justice Department in September, federal agents will have to get warrants to use the devices, which essentially trick cellphones into believing they are cellphone towers.

Law enforcement agents say Stingrays are key to tracking down criminals and finding kidnap victims, but the devices also sweep up data from innocent Americans in the process. The majority of cases will require prosecutors to obtain a search warrant supported by probable cause; however, in exigent circumstances under the Fourth Amendment, such as situations where law enforcement’s needs are “so compelling that they render a warrantless search objectively reasonable” the warrant requirement can be waved. But as cellphone use has become nearly universal, there’s been increasingly murky policies surrounding them, especially as they’re now likely to pick up more valuable data that could be used as evidence. The new policies do not apply to local and state agencies that use Stingrays, even though the devices are often purchased with money from federal grants, DHS Assistant Secretary Seth Stodder told members of the House Oversight and Government Reform Subcommittee on Information Technology.

Of course, there are still exceptions attached to this DHS policy which would override it, like if the investigation involves imminent loss of human life or needing to find a fugitive felon. Subcommittee Chairman Will Hurd, R-Texas, and ranking member Ted Lieu, D-Calif., said they will look at introducing legislation that would codify the new DHS and Justice Department policies into law so that they cannot be scrapped by future agency heads. She noted that the devices purchased by law enforcement aren’t designed to intercept the content of conversations, just to identify phones and locate them. When Rod Blum (R-Iowa) probed about how agents would be reprimanded if they didn’t follow these policies, both the DOJ and DHS said individuals would be left to the agencies’ idea of appropriate punishment, but employees would definitely be held accountable. “As with any technology procedure within an agency if individuals violate their agency’s orders they’re accountable to their agencies and subject to discipline,” said Elana Tyrangiel, principal deputy assistant attorney general, Office of Legal Policy at DOJ.

Patrick Leahy, D-Vt., the senior Democrat on the Senate Judiciary Committee, welcomed the announcement Wednesday but said it does not go far enough to protect the privacy of innocent Americans. To ensure their policies are followed, both agencies instated an auditing procedure with designated executive-level contacts serving as direct lines of contact.

The policy also discloses something that privacy and technology experts have long suspected about the devices — that using them does disrupt the cellular service of all other cell phones in the area. When seeking a court order to use Stingray technology, federal agents must disclose “appropriately and accurately” the underlying purpose and activities for which the warrant will be used, he said.

Marshals Service, uses the devices mounted on airplanes to scan large numbers of Americans’ cellphones, sometimes tens of thousands at a time, in the hunt for fugitives. Some states have already adopted laws that will require local police and sheriff departments to get a warrant before using Stingrays, including Utah, Minnesota and Virginia.

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