On September 3, the Justice Department announced a new policy which will require the FBI, Marshals Service, Drug Enforcement Administration, and the Bureau of Alcohol Tobacco Firearms and Explosives to get a warrant when using Stingray surveillance in domestic crime investigations. But the new policy contains a potentially major “exceptional circumstances” loophole that is undefined and could fuel further abuses of privacy.
Stingray surveillance, as the Electronic Frontier Foundation explained, involves cell-site simulators masquerading as cell towers to trick devices into connecting to them. “This allows agents to learn the unique identifying number for each phone in the area of the device and to track a phone’s location in real time.” (“Stingray” is the name of a common model of cell-site simulator sold by Harris Corporation.)
The new policy [PDF] states “law enforcement agencies must now obtain a search warrant supported by probable cause.” It proceeds to outline two exceptions: (1) “exigent circumstances” and (2) “exceptional circumstances where the law does not require a warrant.”
The very existence of this categorical exception seems to entirely undermine the stated intention of the policy.
Several examples of “exigent circumstances” are outlined as justifications for not getting a warrant—to protect human life or avert serious injury, to prevent imminent destruction destruction of evidence, to pursue a fleeing felon, to prevent the escape of a suspect or convicted fugitive.
These are standard examples of situations, which have typically given law enforcement the authority to waive warrant requirements. Yet, in privacy law, there is no “exceptional circumstances where the law does not require a warrant” category of accepted exemptions to the Fourth Amendment.
As the policy outlines, “There may also be other circumstances in which, although exigent circumstances do not exist, the law does not require a search warrant and circumstances make obtaining a search warrant impracticable.”
The Justice Department claims “such cases” will be “very limited” but does not bother to provide a single example of a situation where human life would not be in danger, a fugitive would not be on the loose, evidence would be near destruction, but law enforcement would be in circumstances that would make not getting a warrant acceptable.
Essentially, the Justice Department seeks to establish a “We Won’t Get a Warrant If We Don’t Feel Like It” loophole in government policy.
Nate Freed Wessler, staff attorney for the American Civil Liberties Union, asserted, “The guidance leaves the door open to warrantless use of Stingrays in undefined ‘exceptional circumstances,’ while permitting retention of innocent bystander data for up to 30 days in certain cases.”
“The second exception listed in today’s policy for undefined ‘exceptional circumstances’ is potentially problematic,” EFF stated. “We have no idea what that means, so we’re waiting to see if and how the exception will be used.”
Another problem with the new policy is that it does not apply to federal agents, who use Stingray surveillance in “national security” investigations.
The policy applies only to state and local law enforcement agencies, which have partnered with federal agencies which are part of the Justice Department. State and local law enforcement could choose not to be partners and continue to follow their own rules for Stingray surveillance. It also is a policy, not law, which according to EFF means people have their privacy violated cannot seek a remedy if law enforcement abuses these guidelines.
Additionally, the premise for why the Justice Department set out this new policy is a bit disingenuous.
“Cell-site simulators, on occasion, have been the subject of misperception and confusion,” according to the policy.
The “misperception” and “confusion” is a result of the secrecy in which the federal government and law enforcement agencies have conspired to keep details about the use of this technology from the public.
As Scientific American summarized in June:
One such document recently revealed that the Baltimore Police Department has used a cell site simulator 4,300 times since 2007 and signed a nondisclosure agreement with the FBI that instructed prosecutors to drop cases rather than reveal the department’s use of the stingray. Other records indicate law enforcement agencies have used the technology hundreds of times without a search warrant, instead relying on a much more generic court order known as a pen register and trap and trace order. Last year Harris Corp., the Melbourne, Fla., company that makes the majority of cell site simulators, went so far as to petition the Federal Communications Commission to block a FOIA request for user manuals for some of the company’s products.
The US Marshal’s Service seized records requested by the ACLU from an office in Sarasota, Florida, so they would no longer be subject to disclosure under the state’s open records law.
Law enforcement agencies have behaved like the CIA and refused to acknowledge whether or not they even have public records related to Stingray surveillance tracking of cell phones.
The policy does nothing to resolve these issues. Freedom of Information Act battles will continue to play out in court, with agencies like the Indiana State Police even going so far as to ludicrously invoke fears of “agricultural terrorism” to keep records secret.
Still, there is reason to acknowledge this is the government’s reaction to challenges from privacy advocates and journalists. It is the government’s attempt to save Stingray surveillance from greater restrictions, as more investigative stories are published which show how law enforcement operations are systematically violating the privacy of Americans.
Minnesota, Utah, Virginia, and Washington State each have laws regulating Stingray use and California and Texas are moving to adopt similar laws. There are moves in Congress to pass a GPS Act to restrict law enforcement’s use of this kind of dragnet surveillance. And, perhaps most troubling for the Justice Department, is a plan by the Baltimore Public Defender’s Office to review nearly 2,000 cases in which Stingray surveillance was used.
This was the Justice Department’s response to a groundswell of resistance to law enforcement’s secretive use of this new powerful and intrusive technology.