The Department of Justice issued new guidelines on Thursday reining in the use of confidential cellphone surveillance technology, and suggested they would enhance privacy rights.
Under the new policy, Justice will need to “obtain a search warrant supported by probable cause before using a cell-site simulator,” technology that is also known as a “Stingray.” However, “limited exceptions” will still be available for agents in “exigent circumstances.” The data that the program collects on innocent people must also be deleted at least once each day.
Details about the Stingray program are vague because the DOJ has kept it mostly confidential. What is known is that the technology allows law enforcement officials to simulate a cellphone tower, thereby collecting identifying information about all of the cellphones in a given area. Theoretically, officials use it when they believe a suspect is in a given area, and it lets them comb through all of the cellular data they collect until they find their target.
The department said Stingray will “not remotely capture emails, texts, contact lists, images or any other data from the phone.” However, officials do have the capability to collect that data.
Sens. Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt., have signed several joint letters requesting more specific information about how the program can be used to gather the contents of communications, and whether it has ever been used in that manner. Justice has never replied definitively, but simply said it was working on revising the program’s standards. The letters may have served as a catalyst for the new guidelines, though the rule does not appear to answer questions about how the devices have been used in the past.
Justice also argues that the guidelines have no real legal teeth, and that it cannot be held accountable for violating them. “This policy guidance is intended only to improve the internal management of the Department of Justice,” a memo clarified. “It is not intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.”
Aside from federal agencies, some local law enforcement agencies also have contracts to use Stingray technology. While isn’t clear how many have such contracts because of the secrecy of the program, the American Civil Liberties Union has identified 53 agencies in 21 states and the District of Columbia that do own Stingrays. Because it based its research on press reports and public documents, the real number is almost certainly higher.
Those agencies will not be bound by the new DOJ guidelines, which apply only to federal law enforcement officials.
ACLU staff attorney Nathan Wessler hailed the new guidance as “a positive first step,” but called it “disturbing” that it will not apply to state or local agencies. “The Justice Department must close these loopholes, and Congress should act to pass more comprehensive legislation to ensure that Americans’ privacy is protected from these devices and other location tracking technologies,” Wessler said.
