The Justice Department on Thursday issued new guidance for how
federal law enforcement can use controversial technology that dupes cellphones
to collect evidence -- placing substantially more requirements on what has been
a shadowy policing technique.
At issue are
cell-site simulators, also referred to as "Stingrays," one type of
such device. The secret devices are used by law enforcement to mimic a
cellphone tower, tricking phones to connect through the Stingray, instead. That
allows law enforcement to capture data from the phones, including location
information and call traffic. The Justice Department says the technology is
programmed to collect no more than that.
The technology
has become highly controversial. A report from The Wall Street Journal last year
revealed that the feds flew airplanes over the U.S. carrying Stingrays to scoop
up call information. And a judge in March detailed a deal between the FBI and local
sheriff's office to drop cases rather than reveal any information about the use
of Stingrays to gather evidence.
The Justice
Department had to date largely declined to comment on use of the devices,
citing national security and not wanting to telegraph U.S. capabilities to
enemies.
But U.S. law
enforcement point to the capture of notorious drug cartel kingpin Joaquin
"El Chapo" Guzman in Mexico in 2013 as an example of the benefits of
cell-site simulators. A version of the Stingray device operated by the U.S.
Marshals Service was used to track a cell phone belonging to Guzman's courier.
Guzman later escaped from a Mexican prison in July.
Thursday, the
Justice Department came out with a detailed set of restrictions on the use of
the devices, requiring federal officers to get warrants before using them and
setting boundaries on what data can be collected and for how long.
But there are
loopholes, as well, including exceptions for "exigent circumstances"
and "exceptional circumstances."
Deputy Attorney
General Sally Quillian Yates heralded the new policies as striking the right
balance between law enforcement needs and civil liberties.
"Cell-site
simulators are a really critical tool for us that we use in a variety of
contexts," Yates said in a briefing Thursday. "It's an important tool
in finding fugitives and finding kidnapping victims and drug cases. But we also
recognize that the public has a real privacy interest and concern here so we
have tried to craft a policy that is mindful of all of those interests and have
attempted to strike the right balance."
Going forward,
the new guidance requires law enforcement to get a warrant before using
cell-site simulators, in addition to the traditional use of the "Pen
Register Statute." That is a 1980's law that allows law enforcement to
place a trace on phone lines to collect numbers.
The Justice
Department will also require that information collected by Stingrays is limited
to signal direction of the cellphone, as opposed to GPS data, and to the
numbers being dialed. The Stingrays cannot collect the content of
conversations, text messages or emails or application data.
Information
collected by Stingrays should be deleted after 30 days if officers don't know
their specific target's number, and after no more than one day if they do.
The guidance
also requires training for personnel using the technology, requires agencies to
pick a point of contact for implementing the guidance, and requires that use of
Stingrays is OK'd by an approved supervisor -- and in emergency circumstances
by a second-level supervisor.
The policy also
notes that using Stingrays on aircraft must be approved at the executive level.
The
"exigent circumstances" and "exceptional circumstances"
when a warrant isn't needed include "immediate danger of death or serious
bodily injury to any person; conspiratorial activities characteristic of
organized crime; an immediate threat to a national security interest; or an
ongoing attack on a protected computer ... that constitutes a crime punishable
by a term of imprisonment greater than one year," the guidance says, as
well as times when "circumstances make obtaining a search warrant
impracticable."
At the briefing
with reporters, Yates said it would be "pretty rare" for those
circumstances to be used, though she wouldn't quantify how rare when asked how
many previous cases would have fallen in that category.
She also said
the policies weren't prompted by a specific incident, but rather were motivated
by a desire to have a "consistent practice" throughout the Justice
Department.
The American
Civil Liberties Union, which has campaigned against the use of Stingrays
without proper restrictions and oversight, said the standards were a positive
step forward, although there are still concerns.
"For far
too long, their use of this powerful surveillance gear has been shrouded in
corrosive levels of secrecy, so we're glad to see more information now and to
see some common-sense policies to protect privacy," staff attorney Nathan
Freed Wessler told CNN. "This should have been policy many years ago; it
shouldn't have relied on the ACLU and the press and defense attorneys prying
information about the use of Stingrays out of the curled fingers of the
government, but as it goes this is certainly a positive step."
Wessler said the
ACLU is pleased to see the warrant requirement and restrictions on data
collection. But he also said the group would like the policy to explicitly
extend to local law enforcement that uses technology or grant money from the
Justice Department for Stingrays.
He added that
privacy community still has concerns about what the exceptional circumstances
described by the policy might be, and called for the Justice Department to be
more explicit.
"It is
completely opaque to us what that means, and we're concerned that it may
constitute a large loophole in the end," Wessler said. "We're not
willing to take them at face value that those would be limited, they owe the
public an explanation on what would be exceptional circumstances."
Yates said
Thursday that the Justice Department is aware of the privacy community's qualms
with Stingrays, and working to address them.
"We
understand people have a concern about their private information," Yates
said.
"Would it
be better for law enforcement if we didn't give up any of this information?
Yes, it probably would," she said. "But there's also an interest in
transparency and in public confidence as well and we're trying to find a
balance between the two of those."
Vermont Sen.
Patrick Leahy, the top Democrat on the Senate Judiciary Committee, heralded the
move -- though he echoed the ACLU's concerns. He and Chairman Chuck Grassley of
Iowa have repeatedly questioned the administration on its use of Stingrays
through their committee.
"The
Department of Justice's new policies are finally starting to catch up with the
rapid advancement of this tracking technology," Leahy said in a statement.
"Today's announcement is a welcome step forward, and has the potential to
bring transparency and consistency to the department's use of these tracking
devices. However, I have serious questions about the exceptions to the warrant
requirement that are set forth in this new policy, and I will press the
department to justify them."
The policy
released Thursday does not specifically deal with investigations on foreigners
under the Foreign Intelligence Surveillance Act, which authorizes much of the
National Security Agency's surveillance program.
The seven-page
policy technically only applies to federal law enforcement, although it also
extends to the many cases in which local agencies coordinate with the federal
law enforcement agencies and share resources, like on task forces. It does not
apply to the Department of Homeland Security, which houses law enforcement
agencies like the Secret Service and Immigration Customs Enforcement, but Yates
said they are working on a similar policy.
According to the ACLU, 53 agencies in 21 states and Washington,
D.C., have Stingray technology.
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