'Insert Probable Cause:' Pen Register Boilerplate Hides Sheriff's Department's Hundreds Of Stingray Deployments

from the nothing-to-see-here-[hides-everything] dept

Despite the combined secretive efforts of nearly every law enforcement agency everywhere (including the FBI), some more Stingray documents have made their way into the public domain, thanks to an FOIA request by Cyrus Farivar of Ars Technica. The San Bernardino Sheriff's Department has released 17 pages of documents that show -- among other things -- that it never seeks a warrant before deploying Stingrays.

The sheriff in San Bernardino County—east of Los Angeles County—has deployed a stingray hundreds of times without a warrant, and under questionable judicial authority.

In response to a public records request, the San Bernardino Sheriff’s Department (SBSD) sent Ars, among other outlets, a rare example of a template for a "pen register and trap and trace order" application. (In the letter, county lawyers claimed this was a warrant application template, when it clearly is not.) The SBSD is the law enforcement agency for the entire county, the 12th-most populous county in the United States, and the fifth-most populous in California.

Ah, the old "an IMSI catcher is really just a high-tech pen register" argument, one that has been deployed by other law enforcement agencies. It really isn't. A pen register is a targeted order seeking calls made from a specific number. A Stingray hoovers up everything in its vicinity (including, in some cases, communications), with disposal of "non-hit" calls/communications left to the discretion of the law enforcement agency that has already hidden its use of this technology from the magistrate signing the order.

This Sheriff's Department hides its use behind pen register orders -- which is either a front-loaded lie or back-end reconstruction, but either way, it definitely is not a "warrant application." This agency has deployed its Stingray 303 times -- apparently often enough that the department felt it wise to streamline its bogus PR/TT orders using a fill-in-the-blank template.

DetectiveName, a Detective for the San Bernardino County Sheriff's Department. hereby applies to the Court for an Order (1) authorizing the use of a PEN register on the telephone lines currently designated by the numbers; Telephone Number (The “Telephone Line”); (2) authorizing the use of a trap-and-trace device on the Telephone Line: and (3) requiring the disclosure of subscriber name and address, whether listed or unlisted. for numbers called by the Telephone Line or numbers calling the Telephone Line. or found during investigation of this case upon oral or written demand of agents of the San Bernardino County Sheriff‘s Department. In support of this application, he states the following:

1) I am a detective for the San Bernardino County Sheriff's Departmant and am requesting an Order authorizing the installation and use of a PEN register and a trap-and-trace device. and the disclosure of subscriber information.

2) I certify that the San Bernardino County Sheriffs Department is conducting a criminal investigation of Crime in connection with possible violations of Crime Definition. It is believed that the below named persons and other unknowns are using the Telephone Lines in furtherance of the subject offenses and that the information likely to be obtained from the PEN register and the trap-and-trace devices is relevant to the ongoing criminal investigation being conducted by the above named agency.

AFFIDAVIT "Insert Probable Cause"

It's that last line -- the one that implies PC is almost an afterthought -- that is a bit problematic. The Sheriff's Department obviously wants to hide its Stingray use from magistrate judges (as per the now-standard non-disclosure agreement with the FBI and DOJ) but its application includes something not needed to acquire pen register orders: probable cause.

Curiously, in the SBSD template application, it includes a section for the detective to "insert probable cause," which is not required under the federal pen register statute.

"The fact that order requires probable cause but isn’t labelled a warrant is also interesting," [Hanni] Fakhoury [EFF] said. "[It's] definitely good that the Sheriff and the court are using the probable cause standard but a warrant is about more than just probable cause; a warrant also requires particularity and continuing oversight by the judge who has to review the inventory and receipt to make sure only authorized things were taken."

"So it’s like this order does some of the stuff a warrant would do, but not all," he said.

And, for whatever reason, also included in the responsive document is what appears to be a boilerplate form for judicial approval of (faux) pen register requests. It certainly gives the appearance of judicial rubber stamping (which, considering the low evidentiary bar for actual pen register order requests, isn't that surprising), but it may be nothing more than an example of an approved order for use in training or as reference material.

Notably, the documents include the NDA agreement with the FBI and DOJ, which states the San Bernardino Sheriff's Department is to route FOIA requests through the feds. Did it? The documents returned here don't technically fall into the areas the agreement specifies (mainly Harris Corp. docs that would expose technical details, etc.), but similar requests have returned fewer documents, with the standard NDA being cited as justification for withholding documents. It's far too early for the DOJ's plan to eventually compel the release of more Stingray documents to have kicked in (something like this seems to take at least a half-decade to implement), so it may be that the Sheriff's Department made its own logical determination as to what fell outside of the FBI's many FOIA restrictions. Still, it's considered bad form to show the public how your agency abuses its legal authorities to hide its surveillance activities.

Filed Under: 4th amendment, imsi catcher, pen register, probable cause, san bernardino, sheriff's department, stingray