OFF THE WIRE
For law enforcement agencies, a strict code of secrecy is the modus operandi when it comes to deploying clandestine surveillance tools. But now a lack of candor could be coming back to bite the authorities. The U.S. government is facing accusations that it concealed information from judges about a controversial cellphone tracking tool when seeking authorization for its use.
A Justice Department document obtained by the ACLU suggests that federal agents in California were using a so-called “Stingray” cellphone surveillance device without “explicit” approval. Stingray is the generic term used to describe a portable spy gadget that has been covertly used by the authorities for almost two decades to trick phones within a targeted area into hopping onto a fake network. The FBI says it uses them to help track the movements of suspects, not to intercept communications. However, by design the devices collaterally gather data on all people in a specific location—not just the suspects. That’s why rights groups claim Stingrays could be used to violate the privacy of “thousands of people.”
The document obtained by the ACLU, published Wednesday, adds a significant new dynamic to privacy advocates’ previous assertions that the use of the technology is in dubious legal territory. A chain of emails sent in 2011 from the office of the U.S. attorney for the Northern District of California, obtained by the civil liberties group under the Freedom of Information Act, shows crime division chief Miranda Kane noting that “many agents are still using [Stingray] technology in the field although the pen register application does not make that explicit.” “Pen register” is a term used to describe a type of surveillance that does not usually require a search warrant because it records only metadata—the who, where, and when of a communication but not the content. A June 2012 ruling in the Southern District of Texas found that Stingrays should require a warrant, with the judge concluding that “the government has not provided any support that the pen register statute applies to stingray equipment.”
The ACLU believes that the emails show “the government was engaged in a widespread practice of withholding important information for judges, and that it did so for years.” Linda Lye, staff attorney at ACLU, said in a blog post that “[b]y withholding information about this technology from courts in applications for electronic surveillance orders, the federal government is essentially seeking to write its own search warrants.”
Particularly notable in light of the new disclosures, at a Yale Law School discussion on tracking earlier this month, Brian Owsley, a Texas federal magistrate judge, suggested that the practice of the feds not making clear the planned use of a Stingray when seeking surveillance authorization could be widespread. “I may have seen them before and not realized what it was, because what they do is present an application that looks essentially like a pen register application,” Owsley said. “So any magistrate judge that is typically looking at a lot of pen register applications and not paying a lot of attention to the details may be signing an application that is authorizing a Stingray.”
A federal court case is currently ongoing in Arizona concerning the lawfulness of the FBI’s deployment of a Stingray to track a suspect suspected of conspiracy, wire fraud, and identity theft (U.S. v. Rigmaiden). The ACLU is a participant and plans to argue at a hearing scheduled for today that evidence gleaned using the surveillance tool should be suppressed. The group says it hopes that the court will send a “clear message to the government that it cannot keep judges in the dark.”
Separately, it emerged today that the FBI has failed in its attempt to delay the release of a vast trove of records relating to the Stingray as part of a Freedom of Information suit being pursued by the Electronic Privacy Information Center, a civil liberties group. The FBI has acknowledged that it holds 25,000 pages of documents that relate to Stingray tools, about 6,000 of which are classified. The bureau was told by a district court judge in the District of Columbia that it has to release all records—except those exempt from disclosure on national security or other grounds—by Aug. 1.
The Justice Department declined to comment for this story.