Considering the number of documents confirming the FBI’s stranglehold on Stingray device information that have been made public in recent months (including the FBI’s nearly-blank 5,000-page FOIA response), this move by the DOJ is a surprising development.
The Justice Department will start revealing more about the government’s use of secret cellphone tracking devices and has launched a wide-ranging review into how law-enforcement agencies deploy the technology, according to Justice officials.
Senior officials have also decided they must be more forthcoming about how and why the devices are used—although there isn’t yet agreement within the Justice Department about how much to reveal or how quickly.
So… caveats, obviously. There’s more on the way, but we don’t know when we’ll get it, or how much it will actually be, but at least the DOJ will finally be taking a look at a technology that’s being deployed by law enforcement agencies — often without warrants. And when they do use warrants, they’re often obtained with misleading affidavits so as to comply with the non-disclosure agreements the FBI forces them to sign before deploying the devices.
This is also surprising, considering the FBI wrote itself a large enough loophole to ensure it never needed to bother with this sort of paperwork.
In recent months, the Federal Bureau of Investigation has begun getting search warrants from judges to use the devices, which hunt criminal suspects by locating their cellphones, the officials said. For years, FBI agents didn’t get warrants to use the tracking devices.
One wonders how the Wall Street Journal knows this, considering the FBI is the last agency that would publicly confirm or deny anything about its Stingray usage. Perhaps some more documents are on the way whether the FBI likes it or not…
But it appears outside scrutiny has finally forced the DOJ to confront the all-encompassing secrecy surrounding Stingrays — something that routinely excludes defendants and judges and sometimes stretches far enough to lock out other “good guys,” like prosecutors and states’ attorneys.
For the first time ever, legislators are beginning to ask uncomfortable questions about the technology. While the FBI can apparently blow off a majority of the US population — including the judicial system — it’s not going to have nearly as much luck fending off determined lawmakers. The technology it loves could become the technology it can no longer have — or at least see it subjected it to a number of requirements that would make it much less enjoyable to deploy.
Congressional scrutiny is never comfortable. But another contributing factor is the entities directly and indirectly involved with tracking cell phones: service providers. They’re unhappy and they’ve got a pretty good idea how often requests for data are heading their way and how specious or redundant the requests are.
Federal law-enforcement and phone-company officials also have expressed concerns that some local police authorities were abusing a legal shortcut by submitting an inordinate number of requests for cellphone information, according to people familiar with the matter.
Some of this is parallel construction. Some of this is abuse of an avenue previously used to acquire specifically-targeted information: pen register/trap and trace orders. It’s already public knowledge that law enforcement agencies — backed by the FBI’s own legal rationalizations — are using these to cover Stingray usage and/or bypass warrant requirements.
About a year ago, Baltimore police officials began deluging some phone companies with requests for customer cellphone information, claiming it couldn’t wait for a judge’s order, according to people familiar with the matter. Normally, police need a court order to get that kind of information about a phone customer. But there is an exception for emergency requests. Phone companies’ rules vary, but they generally allow emergency requests to be fulfilled in missing-persons cases or when there is a risk of death or serious injury. Typically, the phone company employee doesn’t ask questions to verify the nature of the emergency.
No doubt the Baltimore PD used the hell out of this loophole, what with its 4,300 Stingray deployments over a seven-year period.
Whether this examination by the DOJ will result in any meaningful changes is debatable. It could easily decide that everyone’s following all the rules, at least as far as the FBI’s interpretation of statutes governing pen register orders. That it’s actually securing warrants is a positive sign, but it would be nice to see if the affidavits actually specify the devices used to perform the “search.” It’s one thing to gather data on phone calls. It’s quite another to lock down where that phone is located by sifting through everyone’s data while pretending to be a cell tower — especially considering the devices also have the capability to intercept certain communications.