FBI Says It Has A Warrant Requirement For Stingray Use; Has Exception Broad Enough To Ensure It Never Needs A Warrant

Privacy

from the the-warrant-that-wasn't-there dept

Tue, Jan 6th 2015 11:35am — Tim Cushing

As Mike covered here earlier, Sens. Grassley and Leahy are asking the FBI for more answers on its Stingray usage. Not that anyone should be holding their breath in anticipation of a response. The government's use of Stingray devices has been actively hidden from the public (and criminal defendants) for years. Local law enforcement's use has also been hidden, thanks to a bizarre set of non-disclosure agreements, both with the manufacturer (Harris) and the FBI itself.

So, while we wait for the heavily-redacted responses to the senators' queries to eventually arrive at an undetermined point in the far future, let's take a closer look at what the FBI has actually gone on record with about its Stingray use.

The good news (that actually isn't) is this: the FBI now has a warrant requirement for Stingray deployment. But there are (of course) exceptions.

[W]e 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.

A Stingray device is rarely deployed from the comfort of the suspect's living room. In fact, it's safe to say this never happens. What does happen is that Stingrays are deployed from vehicles on public streets or flown overhead in aircraft. It would probably be safe to say that there has not been a Stingray deployment that didn't occur in a public place.

So, there's really no need to ever seek a warrant. The FBI can point proudly to its new warrant requirement as evidence of its respect for privacy, just as long as no one asks if there are any exceptions. Grassley and Leahy, however, have asked. And they have mastered the art of the understatement. They continue:

We have concerns about the scope of the exceptions.

The rule is demolished by the exception. There is no rule. There is no need for the FBI to ever seek a warrant for Stingray usage. If some weird situation does manage to crop up, it will probably involve some other exception (including ones that aren't listed here), and we're back to square one.

If and when the answers arrive, the numbers following these questions will be highly illuminating.

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?

Given the scope of the "public place" exception, the answers to (d) and (e) should be nearly identical. All that remains to be seen is how close those numbers are to 2(a).

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Filed Under: 4th amendment, doj, fbi, privacy, stingray, warrant

37 Comments

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David, 6 Jan 2015 @ 11:56am

Well, obviously.
So if you wanted to claim an expectation of privacy, you should not be using public cell towers. Or other public facilities.

And actually you should not be living in the United States in the first place. There is no reasonable expectation of privacy if you do that, and I suppose that will be the ultimate excuse of FBI and its friends.
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Anonymous Coward, 6 Jan 2015 @ 12:05pm

"Cases that involve a fugitive"
The "cases that involve a fugitive" clause is also extremely vague; cf. NSA/FBI's definition of "related to a terrorism investigation" which somehow includes pretty much anyone. If they want to bug a specific area I'm sure they could name a "fugitive" that was once seen near there (but like the NSA they probably won't feel the need to name any specific investigation).
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ChurchHatesTucker (profile), 6 Jan 2015 @ 12:06pm

WTF
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.

How in the hell can they tell? Set up a Stingray in Central Park and you'll get a whole lot of people chatting in their homes.
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Devil's Advocate, 6 Jan 2015 @ 12:07pm

They're sidelining the actual offense...
So, I guess someone can stand on a sidewalk (public space), and use binoculars to spy into someone else's bedroom, and that would be considered legal as well??!

They're trying to deflect your attention with the "public spaces" idea, in order to obscure the actual crime - spying at something that ISN'T public.
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Anonymous Coward, 6 Jan 2015 @ 12:07pm

Re: Well, obviously.
I heard the NSA is starting to issue secret orders to psychic mediums in order to tap their communications also. Even being dead doesn't provide you with a reasonable expectation of privacy...
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Anonymous Coward, 6 Jan 2015 @ 12:10pm

Re: They're sidelining the actual offense...
Their candid response to this particular scenario would be something like, "only we can see you naked in your own home because we're protecting you from terrorists! The price of freedom is eternal voyeurism by government agents."
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Michael, 6 Jan 2015 @ 12:20pm

Re: They're sidelining the actual offense...
I guess someone can stand on a sidewalk (public space), and use binoculars to spy into someone else's bedroom, and that would be considered legal as well?

I don't specifically know for NY, but peeping Tom laws almost always include the stipulation that the peeper be hiding their activities. So, I would actually guess that your scenario of standing on the street with binoculars and looking into windows is actually completely legal.
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Michael, 6 Jan 2015 @ 12:23pm

Just like when members of the public are inside a rental car it becomes a public place, as long as members of the public are somewhere that place must, by definition, be public.

I'm also pretty sure that this also means that you have no expectation of privacy in any place specifically marked "public", like "public bathrooms".
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Anonymous Coward, 6 Jan 2015 @ 12:30pm

Re: WTF
hey locations at which the FBI deems there is no reasonable expectation of privacy. could be your bedroom next, I mean there is no law preventing or establishing what the FBI can or cannot deem as "private".

Other than the one called the 4th but that pesky thing has not been enforced by anyone so its worth as much as the paper its printed on.
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Trevor, 6 Jan 2015 @ 12:39pm

Given the scope of the "public place" exception, the answers to (d) and (e) should be nearly identical

Spoiler Alert:

The answer will be identical: [REDACTED]
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John Thacker, 6 Jan 2015 @ 12:46pm

Sens. Grassley and Leahy are Chair and ranking member of the Judiciary Committee (having just switched positions with the change in control of the Senate), not just random Senators. That means that they're the highest ranking member of each party with regards to oversight of the Department of Justice and thus the FBI. They can make life hell for the DoJ and the FBI, if willing to do so, and a joint statement sends a strong signal.
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Marak, 6 Jan 2015 @ 1:00pm

Why do I get the feeling, that the FBI is saying to each other "how dare they question us!", as if the senate was a teacher asking a student for a report on their free play.
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Derek Kerton (profile), 6 Jan 2015 @ 1:07pm

Re: Re: WTF
"so its worth as much as the paper its printed on."

No, far less than that.

That particular piece of paper is quite the collector's item, and I'm sure has a very high monetary value. It's stored securely under glass at the National Archives.

Your 4th rights, OTOH, ain't worth squat.
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Anonymous Coward, 6 Jan 2015 @ 1:08pm

FBI to forgot to mention that Stingrays "reach into people's homes and phones inside of homes" too - so using their own logic, unless they are DAMN SURE the stingray passes through no walls, then they aren't using them "only in pubic places", and a warrant should be required anyway.

By enough trying to fix FBI's twisted logic. This shouldn't be accepted by the judges anyway because people DO HAVE AN EXPECTATION OF PRIVACY WHEN TALKING ON THEIR PHONES - in public places or not.
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Derek Kerton (profile), 6 Jan 2015 @ 1:10pm

Re:
Wait...the answer you are showing me was redacted, or the actual answer will be "[REDACTED]".

Geez. This is as complicated as Bob Dylan:

"The answer, my friend, is blowing in the wind."

or was it

"The answer, my friend, is 'blowing in the wind.'"
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um-wtf, 6 Jan 2015 @ 1:54pm

NDAs vs the Constitution
There's been much written about the Stingray use and how LE is claiming that the Harris NDAs "prevents them from from obtaining a warrant".

Isn't this a slam-dunk NO? Wouldn't a single, simple lawsuit against Harris/LE/DOJ challenging the NDA on the basis that NOTHING, especially not a commercial agreement, can overrule the Constitution?

I can't imagine why the first judge to get this case would immediately say "LOL - really? This is bullshit. I don't give a good g-ddamn what your NDA says, it doesn't trump the Constitution. GET A WARRANT WITH FULL DISCLOSURE.

What am I missing?
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Anonymous Coward, 6 Jan 2015 @ 2:27pm

Re: Re: Well, obviously.
...I heard the NSA is starting to issue secret orders to psychic mediums in order to tap their communications also...

Like that information will be accurate and truthful?
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David, 6 Jan 2015 @ 2:32pm

Re: NDAs vs the Constitution
You are obviously missing that the Fourth Amendment does not trump a non-disclosure agreement.

Law enforcement may very well enjoined from getting a warrant for using a Stingray.

Of course, that means they are enjoined from using the Stingray in the first place.

Any use of a Stingray under Stingray's operating conditions is illegal in the United States. Consequently, the company needs to get shut down as it only dabbles in illegal goods intended for unlawful use, and any existing devices in the hands of law enforcement need to be collected and destroyed.

These devices are not intended to be operated within the constraints of U.S. law, and the respective non-disclosure agreements make sure that any operation of them will be illegal. And it would appear that the temptation to do so nevertheless has already corrupted numerous law enforcement agencies to the highest level.
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Anonymous Coward, 6 Jan 2015 @ 2:58pm

I have a new name for the FBI:
Feeble Brained Idiocies.
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Anonymous Anonymous Coward, 6 Jan 2015 @ 3:29pm

Re: Well, obviously.
Or, don't use a cell phone, or alternatively use a cell phone once in a while and remove the battery and place it in a Faraday bag between uses (no battery does not necessarily mean the GPS isn't functioning, or so I hear).

I read about a guy buying an older, simpler phone ($10 on ebay), and not activating it to use as an MP3 player.

Personally, I use Skype, and spend about half the call vilifying the NSA, since I KNOW they are listening. Somebody has to entertain them.
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Anonymous Coward, 6 Jan 2015 @ 3:51pm

Re: WTF
reasonable expectation of privacy
What does "expectation" have to do with anything? I expect them to torture and launder drug money too. It doesn't mean I consent.
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Anonymous Coward, 6 Jan 2015 @ 3:59pm

Re: Re:
At DOJ "wind" and "blowing" have peculiar meanings. For example "wind" can [redacted] while "blowing" is [redacted].
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BlueLightMemory, 6 Jan 2015 @ 4:10pm

FBI = Lawlessness
"We're the FBI, we don't need no stinkin warrant, watch how we work this"

The lawlessness of the FBI is growing in leaps and bounds. And to think, this is the same agency which arrests American citizens for breaking the law, yet they won't touch with a ten foot pole the major law breakers such as Obama, Holder, and themselves.
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Padpaw (profile), 6 Jan 2015 @ 4:16pm

maybe its related to the recent Australian law passed that requires only 1 warrant to spy on citizens everywhere indefinitely using the internet
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Padpaw (profile), 6 Jan 2015 @ 4:17pm

Re: FBI = Lawlessness
if you hold up a mirror to them you get the gestapo
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k-h, 6 Jan 2015 @ 4:33pm

Did they fly over private property?
Surely if they used stingray on aircraft, they could not have guaranteed they were on public property.
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Spaceman Spiff (profile), 6 Jan 2015 @ 4:35pm

Can you spell Catch-22?
Joseph Heller would be proud! That door is wide enough to drive the Queen Mary through...
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art guerrilla (profile), 6 Jan 2015 @ 4:39pm

Re: "Cases that involve a fugitive"
fugitive nation ? ? ?

parasitizing off of your post...

an INEVITABLE proposition i would like to remind kampers of, is that bots of all sorts are being miniaturized to the point of microscopic...

SURELY, NO ONE can object to the fbi (AND the whole alphabet spook contingent) putting a harmless little surveillance nanobot up your butt to ensure you are not having any thought-krimes, citizen...

even though it will have many bytes, it won't hurt a bit...

um, did we mention that objecting to a nanobot up your butt is tantamount to a thought-krime and punishable by having a nanobot up your butt ? ? ?

Empire must fall.
the sooner the fall,
the gentler for all...
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vno, 7 Jan 2015 @ 12:27am

has the FCC licensed the FBI?
The issue here may be one that can be raised with the FCC, the cell frequencies were auctioned off to the highest bidders at the time and the FCC would not and could not issue a license to the FBI, I would imagine, so I'd think that this already makes the use of Stingray equipment by law enforcement in general pretty much illegal, I would imagine. But hey, what's good for the goose is good for the gander, time to deploy your cell phone jammers, since it would appear licensing isn't required anymore, unless I have it all wrong :->
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Anonymous Coward, 7 Jan 2015 @ 1:23am

Re: Can you spell Catch-22?
Sideways.
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David, 7 Jan 2015 @ 1:59am

I finally figured it out
Obviously, setting up a Stingray in a "public place without expectation of privacy" (which covers about 100% of all use cases) does not mean that the collected calls will be from such a public place.

But remember the NSA recording any conversation leaving the U.S.A. in the "expectation" that such calls will not involve U.S. citizens?

Once the information is collected "accidentally", the evidence is admissable. It is only the "intentionally" collected evidence that needs prior warrants.

So the FBI puts up Stingray towers in the "expectation" that they will only record calls made from public places. But they get to keep all "accidentally" collected calls made from anywhere else. Because they could not possibly apply for a warrant for information they came across by mere accident in the process of looking for information they are permitted to look for.

Does that sound about right? I mean, does this sound like the steaming heaps of bullshit that the executive is getting away with all the time?

You really need to raze the Department of "Justice" and the National "Security" Agency to the ground and start from scratch. They are corrupt to the core and don't even understand what the law is supposed to be about.
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Anonymous Coward, 7 Jan 2015 @ 2:48am

How can a Stingray tell if someone's standing on a sidewalk, or inside their house? I think radio waves travel through house walls.

There was a Supreme Court case where police used thermal imaging cameras to see inside someone's house that they suspected of growing cannabis. The court ruled the thermal pictures constituted an illegal search without a warrant. Violated the home owner's 4th Amendment right against warrantless searches, by using the camera to see through the walls in his house.

Radio waves are being transmitted from airplanes flying over thousands of homes. Seizing and search every text, phone call, and logging the location of anyone within range, with no warrants or oversight from judges. Airplanes get really good radio signal range. Even better range than cellphone towers, because they fly higher than towers.

It's the very definition of a general warrant, except there's no warrant. I guess that makes it warrantless search and seizure on a massive scale. Definitely unconstitutional. We live in a lawless country.

Since the government has no regard for the fundamental laws which serve as the bedrock of this country. I'll simply look to them for guidance and follow their lawless lead. When in Rome, do like the Romans.
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John Fenderson (profile), 7 Jan 2015 @ 7:53am

Re: Re: Well, obviously.
"(no battery does not necessarily mean the GPS isn't functioning, or so I hear)"

You hear wrong. Some cellphones may include a supercap that can hold a charge for a after battery removal, but it wouldn't last for very long at all if GPS is being used (GPS takes a fair bit of power).
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nasch (profile), 7 Jan 2015 @ 12:02pm

Re: Re: NDAs vs the Constitution
You are obviously missing that the Fourth Amendment does not trump a non-disclosure agreement.

Under what legal theory? The Constitution is the supreme law of the land. It absolutely does trump any statute, and as far as I know common law as well, and the validity of an NDA is based on one or both of those.
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nasch (profile), 7 Jan 2015 @ 12:03pm

Re: Did they fly over private property?
Surely if they used stingray on aircraft, they could not have guaranteed they were on public property.

Private rights to airspace only extend so high, and I'm sure they were above that. It's only like 400 feet or something.
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David, 7 Jan 2015 @ 1:00pm

Re: Re: Re: NDAs vs the Constitution
Under what legal theory?

You don't get to ignore "lesser" laws just because it makes it more convenient to reconcile your wishes with the "greater" laws.

It is obviously very easy to maintain both the constitutional requirement for getting a warrant before conducting a First-Amendment relevant search and the non-disclosure agreement for the Stingray at the same time, and so that's what law enforcement is required to do.

All you have to do in order to heed both legal requirements is to never switch the Stingray on. Simple as that.

No breach of the warrant requirement, no breach of the NDA. Sure, it is stupid to buy an expensive device you are not allowed to switch on, but you should have thought about that before signing the NDA preventing legal use of the device.
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nasch (profile), 7 Jan 2015 @ 2:36pm

Re: Re: Re: Re: NDAs vs the Constitution
All you have to do in order to heed both legal requirements is to never switch the Stingray on.

Sure, but we're already not in that situation. Now that it's been used, the police can't legitimately claim that they're not allowed to comply with the Constitution because they've signed an NDA.
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