EFF: "Finally! DOJ Reverses Course and Requires Warrants for Stingrays!"

Sept. 4, 2015

      SEPTEMBER 3, 2015 | BY NATE CARDOZO

*Finally! DOJ Reverses Course and Requires Warrants for Stingrays!*

https://www.eff.org/deeplinks/2015/09/finally-doj-reverses-course-and-will-g...

At long last, the U.S. Department of Justice (DOJ) has announced a slew 
of much-needed policy changes regarding the use of cell-site simulators. 
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.

Colloquially known as “Stingrays” after Harris Corporation’s brand name 
for a common model, 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. But 
Stingrays can get a lot more than just identifying numbers and location 
data—by virtue of the way they work, 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.

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 about the 
technical capabilities and even model numbers of the devices. 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. Although today’s policy changes don’t 
directly affect the non-disclosure agreements already in place, the tone 
of the announcement, along with a clarification from May, gives us hope 
that more transparency is on the way.

*What today’s changes do:*

Federal law enforcement agents will be required to obtain a search 
warrant supported by probable cause prior to using a cell-site simulator 
in a law enforcement context. A search warrant requires a showing by the 
agent, under oath, that meets one of the highest standards in federal 
law. This incredibly important change is precisely what EFF has been 
asking for.
Agents will only be allowed to use Stingrays in “pen register” mode, 
meaning the devices will collect only the basic location of the phone 
and the numbers of incoming and outgoing calls and texts. Agents will 
not be allowed to collect the content of your communications -- like 
your emails or text messages -- even if the cell-site simulator is 
capable of such collection.
Finally, Agencies must delete data on users not targeted in either 24 
hours or 30 days, depending on context.

*What today’s changes don’t do:*

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.
There are two enumerated exceptions to the warrant requirement in 
today’s guidance. The first is the traditional “exigent circumstances” 
exception, common to all warrant requirements and not particularly 
worrisome. But the second exception listed in today’s policy for 
undefined “exceptional circumstances” is potentially problematic. We 
have no idea what that means, so we’re waiting to see if and how the 
exception will be used.

*What more is needed:**
*
While we’re pleasantly surprised by this long-needed first step to bring 
Stingrays out of the shadows and into compliance with the Fourth 
Amendment’s warrant requirement, more is needed.

First and foremost, 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.

And finally, we need to extend this warrant requirement to all state and 
local law enforcement agencies around the country. Some states (such as 
Washington) already have such laws in place. It’s time to make the 
message clear to cops in all 50 states: if you want to use a Stingray, 
get a warrant!

Files

  doj_cell_site_simulator_policy_9-3-15.pdf

J.C. DE MARTIN

Guido Noto La Diega

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