FBI Says Doesn't Need Warrant to Spy on Cell Phones In Public...
FBI says search warrants not needed to use “stingrays” in
public places
Feds' position on decoy cell-site towers continues
anti-privacy theme.
by David Kravets - Jan 5 2015, 11:25am PST
The Federal Bureau of Investigation is taking the
position that court warrants are not required when deploying cell-site
simulators in public places. Nicknamed "stingrays," the devices are
decoy cell towers that capture locations and identities of mobile phone users
and can intercept calls and texts.
The FBI made its position known during private briefings
with staff members of Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.)
and Sen. Chuck Grassley (R-Iowa). In response, the two lawmakers wrote Attorney
General Eric Holder and Homeland Security chief Jeh Johnson, maintaining they
were "concerned about whether the FBI and other law enforcement agencies
have adequately considered the privacy interests" of Americans.
According to the letter, which was released last week:
For example, we understand that the FBI’s new policy
requires FBI agents to obtain a search warrant whenever a cell-site simulator
is used as part of a FBI investigation or operation, unless one of several
exceptions apply, including (among others): (1) cases that pose an imminent
danger to public safety, (2) cases that involve a fugitive, or (3) cases in
which the technology is used in public places or other locations at which the
FBI deems there is no reasonable expectation of privacy.
The letter was prompted in part by a Wall Street Journal
report in November that said the Justice Department was deploying small
airplanes equipped with cell-site simulators that enabled "investigators
to scoop data from tens of thousands of cellphones in a single flight,
collecting their identifying information and general location."
The bureau's position on Americans' privacy isn't
surprising. The Obama Administration has repeatedly maintained that the public
has no privacy in public places. It began making that argument as early as
2010, when it told a federal appeals court that the authorities should be
allowed to affix GPS devices on vehicles and track a suspect's every move
without court authorization. The Supreme Court, however, eventually ruled that
warrants are required. What's more, the administration has argued that placing
a webcam with pan-and-zoom capabilities on a utility pole to spy on a suspect
at his or her residence was no different from a police officer's observation
from the public right-of-way. A federal judge last month disagreed with the
government's position, tossing evidence gathered by the webcam that was
operated from afar.
In their letter, Leahy and Grassley complained that
little is known about how stingrays, also known as ISMI catchers, are used by
law enforcement agencies. The Harris Corp., a maker of the devices from
Florida, includes non-disclosure clauses with buyers. Baltimore authorities
cited a non-disclosure agreement to a judge in November as their grounds for refusing
to say how they tracked a suspect's mobile phone. They eventually dropped
charges rather than disclose their techniques. Further, sometimes the
authorities simply lie to judges about their use or undertake other underhanded
methods to prevent the public from knowing that the cell-site simulators are
being used.
"The Judiciary Committee needs a broader
understanding of the full range of law enforcement agencies that use this
technology, the policies in place to protect the privacy interests of those whose
information might be collected using these devices, and the legal process that
DOJ and DHS entities seek prior to using them," Leahy and Grassley wrote
in their letter to Holder and Johnson.
Hanni Fakhoury, an attorney for the Electronic Frontier
Foundation, said some states and judges are pushing back against stingrays.
"In Tacoma, judges now require police (to)
specifically note they plan to use an IMSI catcher and promise not to store
data collected from people who are not investigation targets," he said.
"The Florida and Massachusetts state supreme courts ruled warrants were
necessary for real-time cell phone tracking. Nine states—Colorado, Illinois,
Indiana, Maryland, Minnesota, Tennessee, Utah, Virginia, and Wisconsin—passed
laws specifically requiring police to use a warrant to track a cell phone in
real time."
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