Ars Technica reported that the Department of Justice (DOJ) is going to formally review how, when, and why it uses mobile phone surveillance devices, commonly known as stingrays, according to a report from The Wall Street Journal (sub. req.). Apparently the internal review has already begun.
As most RTL readers know, stingrays, which are cell-site simulators, can be used to determine location by spoofing a cell tower and can also be used to intercept calls and text messages. Once deployed, the devices intercept data from a target phone as well as information from other innocent phones within the vicinity.
Law enforcement has been reluctant to have use of the technology made known, even dropping charges rather than having the use of stingrays examined publicly. Just a week ago, a robbery suspect in St. Louis who had previously pleaded guilty changed her plea after discovering that a stingray was used in her case. The prosecutors dropped the charges but insisted that the stingray technology had nothing do with their actions. Oh sure.
Typically, police deploy stingrays without first obtaining a search warrant. In January 2015, the FBI asserted that it does not need a warrant to use them in public. So if law enforcement seeks judicial approval at all, it’s usually under a "pen register and trap and trace" application. This requires the authorities to show relevance to a criminal investigation rather than prove the probable cause necessary for a warrant. Judges who sign off on these arrangements have been typically unaware of the stingrays' full capabilities.
There have been a small handful of known criminal cases nationwide where charges have been impacted or dropped because the defendants challenged the use of stingrays. Cops have even lied to courts about their use. These results stem from the FBI's non-disclosure agreement with various law enforcement agencies nationwide, and the agreements have only recently been published in full and unredacted form.
American Civil Liberties Union Attorney Nathan Wessler told Ars a shift toward transparency and using warrants is "long overdue," but the slow pace of that transition is troubling. "[It's] disturbing that the FBI has been gagging local police from telling judges and defense attorneys about stingray use, yet doing nothing to ensure that local law enforcement uses this technology in accord with the Fourth Amendment."
The FBI has recently been getting warrants before utilizing stingrays, a move I applaud. We need to ensure that all of law enforcement is required to get a warrant. That nettlesome Fourth Amendment needs a little respect. We're moving in the right direction - just not fast enough.
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Digital Forensics/Information Security/Information Technology