Tech Dirt – by Mike MasnickWe’ve written plenty about Stingrays and other “IMSI Catcher” devices that allow law enforcement to set up what are effectively fake cell phone towers, designed to intercept calls and locate certain individuals. These devices are deployed in near total secrecy, often by law enforcement who got them from the federal government. There is little to no oversight over how these are used (and abused). The attempts to keep the details a total secret represent really egregious behavior from all involved. As we’ve covered, police have claimed that non-disclosure agreements with the manufacturers (such as Harris Corp.) prevent them from getting a warrant to use the devices. The DOJ, somewhat famously, had a whole plan for how to mislead judges about the use of these devices, with official documentation telling DOJ officials to be “less than explicit” and “less than forthright” to judges about how the tech was being used. In some cases, the US Marshals have stepped in and seized documents from local police forces to block them from being released in response to FOIA requests.
In short, law enforcement really doesn’t want how it uses these devices revealed. And yet, reporters and activists keep digging up more information, including the WSJ finding out that the US Marshals (them again!) have been putting airborne versions of these devices, called DRT boxes, on airplanes and flying them over cities, likely scooping up information on tons of innocent people with no warrant.
At least some in our government are concerned about this. Senators Patrick Leahy and Chuck Grassley have been pressing government officials on this, and before the holidays sent a letter to Attorney General Eric Holder and Homeland Security Boss Jeh Johnson demanding answers. One very interesting tidbit is that in response to some of this public disclosure, the FBI now, at least, gets warrants before using the technology — but the Senators would like more details:
We wrote to FBI Director Comey in June seeking information about law enforcement use of cell-site simulators. Since then, our staff members have participated in two briefings with FBI officials, and at the most recent session they learned that the FBI recently changed its policy with respect to the type of legal process that it typically seeks before employing this type of technology. According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice. Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology.
But, still, the Senators would like a few more details:
The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them.
For example, we understand that the FBI’s new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.
We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests.
The specific questions being asked:
1. Since the effective date of the FBI’s new policy:
a. How many times has the FBI used a cell-site simulator?
b. In how many of these instances was the use of the cell-site simulator authorized by a search warrant?
c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used.
d. In how many of these instances was the cell-site simulator used without any legal process?
e. How many times has each of the exceptions to the search warrant policy, including those listed above, been used by the FBI?
2. From January 1, 2010, to the effective date of the FBI’s new policy:a. How many times did the FBI use a cell-site simulator?
b. In how many of these instances was the use of a cell-site simulator authorized by a search warrant?
c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used.
d. In how many of these instances was the cell-site simulator used without any legal process?
e. In how many of the instances referenced in Question 2(d) did the FBI use a cell-site simulator in a public place or other location in which the FBI deemed there is no reasonable expectation of privacy?3. What is the FBI’s current policy on the retention and destruction of the information collected by cell-site simulators in all cases? How is that policy enforced?
4. What other DOJ and DHS agencies use cell-site simulators?
5. What is the policy of these agencies regarding the legal process needed for use of cell-site simulators?
a. Are these agencies seeking search warrants specific to the use of cell-site simulators?
b. If not, what legal authorities are they using?
c. Do these agencies make use of public place or other exceptions? If so, in what proportion of all instances in which the technology is used are exceptions relied upon?
d. What are these agencies’ policies on the retention and destruction of the information that is collected by cell-site simulators? How are those policies enforced?6. What is the Department of Justice’s guidance to United States Attorneys’ Offices regarding the legal process required for the use of cell-site simulators?
7. Across all DOJ and DHS entities, what protections exist to safeguard the privacy interests of individuals who are not the targets of interception, but whose information is nevertheless being collected by cell-site simulators?
Anyone taking bets on how few of these questions will actually be answered?