New Justice Department Policy Requires Warrants For Some Stingray Uses

Just before the holiday weekend, the U.S. Department of Justice (DOJ) announced a new policy where probable-cause warrants are required for federal agencies to use cellular-tower simulators or "stingrays." The new policy went into effect immediately. The DOJ announced on September 3 that the new policy:

"... will enhance transparency and accountability, improve training and supervision, establish a higher and more consistent legal standard and increase privacy protections in relation to law enforcement’s use of this critical technology... To enhance privacy protections, the new policy establishes a set of required practices with respect to the treatment of information collected through the use of cell-site simulators. This includes data handling requirements and an agency-level implementation of an auditing program to ensure that data is deleted consistent with this policy."

The new policy and stingray usage:

"... cell-site simulators may not be used to collect the contents of any communication in the course of criminal investigations. This means data contained on the phone itself, such as emails, texts, contact lists and images, may not be collected using this technology. While the department has, in the past, obtained appropriate legal authorizations to use cell-site simulators, law enforcement agents must now obtain a search warrant supported by probable cause before using a cell-site simulator. There are limited exceptions in the policy for exigent circumstances or exceptional circumstances where the law does not require a search warrant and circumstances make obtaining a search warrant impracticable. Department components will be required to track and report the number of times the technology is deployed under these exceptions."

The Electronic Frontier Foundation (EFF) discussed the new DOJ policy:

"Most importantly, starting today all federal law enforcement agencies—and all state and local agencies working with the federal government—will be required to obtain a search warrant supported by probable cause before they are allowed to use cell-site simulators. EFF welcomes these policy changes as long overdue... Until recently, law enforcement’s use of Stingrays has been shrouded in an inexplicable and indefensible level of secrecy. At the behest of the FBI, state law enforcement agencies have been bound by non-disclosure agreements intended to shield from public scrutiny all details... Law enforcement has gone to extreme lengths to protect even the most basic information about them, even dropping charges rather than answering judges’ questions about them."

The EFF article discussed how stingrays work and what they collect:

"... cell-site simulators masquerade as legitimate cell phone towers, tricking phones nearby 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... all mobile traffic (voice, data, and text) from every phone in the area could be routed through the Stingray, giving the operator the option to do anything from recording entire calls and texts, to selectively denying service to particular phones."

Powerful technology. The new DOJ has limitations. According to the EFF:

"The new policy isn’t law and doesn’t provide any remedy to people whose data is swept up by Stingrays operated without a warrant. Indeed, it won’t even act to keep evidence collected in violation of the policy out of court (this is known as suppression). The policy doesn’t apply to the use of Stingrays outside of the criminal investigation context. For instance, when federal agents use cell-site simulators for “national security” purposes, they won’t be required to obtain a warrant by the terms of this policy..."

And, most importantly:

"... without a statute or court decision giving this voluntary policy the force of law, there will be no consequences if law enforcement agents flout its terms and continue using Stingrays as they have—without warrants. With only this policy shielding us, there’s nothing keeping warrantless Stingray evidence out of court, and therefore nothing to deter agents from behaving badly."

U.S. Senator Patrick Leahy (D-Vermont) issued this statement on September 4 (link added):

"The Department of Justice’s new policies are finally starting to catch up with the rapid advancement of this tracking technology. For more than a year, Chairman Grassley and I have pressed the administration about the use of cell-site simulators, which sweep up cell phone signals from innocent Americans who are not targets of an investigation. Today’s announcement is a welcome step forward, and has the potential to bring transparency and consistency to the Department’s use of these tracking devices. However, I have serious questions about the exceptions to the warrant requirement that are set forth in this new policy, and I will press the Department to justify them.”

Reportedly, earlier this year the Baltimore Police Department acknowledged that it had already used the stingray technology more than 4,300 times. The technology is used by many other police departments.

What are your opinions of the Justice Department's new policy? Just right, too little too late, or too much? Do your elected officials adequately represent your views on stingray usage?