Deputy AG: Use of 'stingrays' must be spelled out
WASHINGTON — In most cases, federal law enforcement officials must now obtain search warrants to deploy controversial cellphone tracking systems that have been widely used, though rarely disclosed, across the country.
A seven-page memo issued Thursday by Deputy Attorney General Sally Yates requires that the proposed use of the cell-site simulator device, commonly known as a “stingray,’’ be spelled out in search warrant applications.
The memo, however, provides for two exceptions to the warrant requirement: an urgent public safety need to protect life, property or to capture a fleeing felon; and when the need meets so-called “exceptional circumstances,’’ in which obtaining a warrant is not practicable because of time or distance from a federal magistrate.
The policy, which also requires regular disposal of data from the device, applies only to law enforcement components of the Justice Department — the FBI, Marshals Service, Drug Enforcement Administration and the Bureau of Alcohol Tobacco Firearms and Explosives--engaged in domestic investigations.
State and local law enforcement agencies, which use the technology extensively in cases ranging from petty street crimes to violent felonies, are only constrained when they are working as part of federal task forces.
"Cell-site simulator technology has been instrumental in aiding law enforcement in a broad array of investigations, including kidnappings, fugitive investigations and complicated narcotics cases,'' Yates said. "This new policy ensures our protocols for this technology are consistent, well managed and respectful of individuals' privacy and civil liberties.''
In a series of articles, USA TODAY has outlined the broad use of the surveillance technology, which has been frequently concealed from suspects, their lawyers and even judges. While the FBI does not have authority to instruct local police departments how to use stingrays, the bureau has asked that the agencies keep the use confidential, requiring them to sign non disclosure agreements that prohibit local officers from revealing how the technology works.
The new Justice policy does not specifically address that issue, but Yates expected that the FBI would be "revising those agreements'' with state and local agencies to allow for disclosure of the technology's use.
The suitcase-size systems mimic cellphone towers, directing phones within a certain radius to connect and feed data to police about users’ approximate locations. They do not intercept the content of communications, though information from the phones of others unrelated to the law enforcement surveillance operations are routinely scooped in the process.
Nathan Freed Wessler, staff attorney for the ACLU's Speech, Privacy, and Technology Project, said he was "happy'' that Justice was engaging in a public discussion, but he said the policy did not go far enough.
"Disturbingly, the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices,'' Wessler said. "In addition, the guidance leaves the door open to warrantless use of stingrays in undefined 'exceptional circumstances,' while permitting retention of innocent bystander data for up to 30 days in certain cases.''
Members of Congress have actively sought to rein in the secretive federal law enforcement program.
Earlier this summer, the House passed, by a voice vote, a Justice spending bill that included an amendment that sought to bar funding for the use of stingrays without a warrant. The amendment's author, Rep. Darrell Issa, R-Calif., said then that the technology allows for "spying on law-abiding citizens, as we speak.''
Sen. Patrick Leahy, the Judiciary Committee's ranking Democrat, called Thursday's Justice announcement a "welcome step forward.''
"However, I have serious questions about the exceptions to the warrant requirement...and I will press the department to justify them,” Leahy said.
Contributing: Erin Kelly and Brad Heath.
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