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.