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DOJ Hid Routine Use of ‘Stingray’ Surveillance Technology from Federal Magistrate Judges

cell phone tower

Stingray technology acts as fake cell phone towers to locate, interfere and intercept communications

The FBI currently uses technology, which acts as a fake cell phone tower to track and locate phones being used by targets. Known as “Stingray,” the technology can locate, interfere and intercept communications.

The use of this technology is being challenged in the case of Daniel Rigmaiden, a “hacker” who was indicted on charges of conspiracy, wire fraud and identity theft in 2008. Rigmaiden has sought discovery evidence on how government agents were able to locate and track him and maintains that the use of a StingRay device to catch him was illegal as it was done without a warrant.

Attorneys with the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) have filed a brief in support of efforts by Rigmaiden to suppress evidence obtained through a “Stingray” device. Moreover, the ACLU has uncovered evidence that the Justice Department has been hiding information on how often this device is used from federal magistrate judges.

Linda Lye, a staff attorney for the ACLU of Northern California, wrote in a blog post on recently obtained emails through a Freedom of Information Act lawsuit, “The federal government was routinely using stingray technology in the field, but failing to “make that explicit” in its applications to the court to engage in electronic surveillance. When the magistrate judges in the Northern District of California finally found out what was happening, they expressed ‘collective concerns,’ according to the emails. Notably, this email chain is dated May 2011, some three years after the Stingray’s use in Rigmaiden’s case – meaning the government was not ‘forthright’ in its applications to federal magistrate judges for at least three years.”

The referenced email appears below:

As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…

The brief from the ACLU and EFF says the government did not “disclose” its “intent to use a stingray and the device’s indiscriminate intrusiveness into protected areas” and maintains the government cannot use this sophisticated and invasive technology without explaining to a magistrate that it intends to specifically use it in conducting a search.

It describes Stingrays as “highly intrusive and indiscriminate,” noting the technology can be used to obtain “information from all devices on the same network in a given area and send signals into the homes, bags, or pockets of the suspect and third parties alike.” Its capabilities clearly threaten a person’s privacy, especially if it is being used on that person without a warrant.

The ACLU and EFF argue a “search” under the Fourth Amendment occurred when 38 days of cell site location information was collected and calls the case a “stark illustration of how Fourth Amendment privacy protections” are being eroded because the federal government misrepresents or declines to inform judges about surveillance technology being used.

The government seeks blanket authorization to conduct searches using invasive new technologies, without providing the issuing magistrate even rudimentary information about how the technology works. This Court should not countenance the government’s effort to render meaningless the role of courts as an essential safeguard against unconstitutional searches and seizures. In addition, the government wrongly asserts that Mr. Rigmaiden lacked a reasonable privacy expectation because he used an alias. Because the First Amendment protects the right to anonymous internet speech, his privacy interest was objectively reasonable.

Attorneys suggest in the brief that the decision should be influenced by the Supreme Court’s decision in US v. Jones, which found GPS devices could not be physically attached to vehicles without a warrant. In this case, five justices decided “prolonged electronic location tracking, even while a suspect travels in public areas, violates reasonable privacy expectations because it generates a ‘precise [and] comprehensive’ record about intimate details, such as ‘familial, political…, and sexual associations.'” [cont’d]

“Given the similar precision of the technology,” attorneys argue, “the conclusion of five justices in Jones that 28 days of GPS tracking violated reasonable privacy expectations compels the same conclusion with 38 days of cell site information.”

On March 28, Lye will be in court in Arizona to argue that evidence from the “Stingray” technology in Rigmaiden’s case should be suppressed because the tool was used without giving proper notification to a federal magistrate judge.

In February 2003, the Electronic Privacy Information Center (EPIC) obtained documents on this technology as part of a response to a FOIA request:

The documents obtained by EPIC reveal that agents have been using “cell site simulator” technologies, also known as “StingRay,” “Triggerfish,” or “Digital Analyzers” to monitor cell phones since 1995. Internal FBI e-mails, also obtained by EPIC, reveal that agents went through extensive training on these devices in 2007. In addition, a presentation from the agency’s Wireless Intercept and Tracking Team argues that cell site simulators qualify for a low legal standard as a “pen register device,” an interpretation that was recently rejected by a federal court in Texas.

The Justice Department has adopted a similar incorrect and illegitimate interpretation in the case of Rigmaiden.

This case is but another example where agents used broad and largely unconstrained surveillance powers without concern for citizens’ privacy rights. The federal government misrepresented key information from judges and engaged in warrantless activity, and this because those involved in overseeing  such surveillance state conduct have contempt for judicial review.

Consider how statutes governing FBI-issued national security letters, which are issued telecommunication companies, financial institutions, credit companies, etc, without court approval so that agents can compile dossiers on not only targets of investigations but also “communities of interest” of which the target is associated. A federal judge recently ruled that gag provisions preventing individuals and companies from talking about the requests or even the fact that a request was received is unconstitutional. Part of the ruling was driven by the fact that this was a process which Congress authorized under the PATRIOT Act that had been developed in such a way to prevent judicial review and discourage citizens from challenging gag provisions in the courts.

The culture of indifference to civil liberties of citizens intrinsic to investigations by federal agents is why the work of the ACLU and EFF is immensely valuable. Congress and the administration of President Barack Obama do not find abuses of surveillance powers warrant any response; in fact, such activity is to be permitted. Only a handful of people in both branches can be bothered to pay lip service to protecting privacy. Therefore, the effort to force out into the open information on technology the surveillance state is using and the legal basis and authority with which the government thinks it can employ such technology is to be praised. The effort to convince judges that privacy rights should be protected in all cases is to be commended as well.

Photo by Keith Survell released under Creative Commons License

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."