Legislators Introduce Bill That Would Turn DOJ's Stingray Policies Into US Law

from the no-longer-just-suggestions dept

Tue, Nov 3rd 2015 3:27pm — Tim Cushing

The DOJ issued its formal guidance on Stingray devices and warrants back in September. While it was a nice afterthought, it sported an underdeveloped set of teeth. The biggest problem? It's nothing more than guidance. It's a set of internal policies that the DOJ's underlings are expected to follow. Any misuse will presumably be subject to written reprimands and little else.

As it is only guidance, there's very little accountability added. If an agency violates the new policies during the course of an investigation, the violated person doesn't have the option of seeking redress through the judicial system.

This policy guidance is intended only to improve the internal management of the Department of Justice. 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.

Whatever restraints the DOJ is applying to itself matter only to the DOJ, which can perform its own internal investigations and mete out whatever disciplinary actions it feels those coloring outside of the lines deserve.

Fortunately, there's an effort being made to open up this Stingray guidance closed-loop and introduce some real accountability. As Eric Geller at the Daily Dot reports, legislators are introducing a bill that would codify the DOJ's Stingray guidance.

Reps. Jason Chaffetz (R-Utah), John Conyers (D-Mich.), and Peter Welch (D-Vt.) on Monday introduced the Stingray Privacy Act, which would limit the government's use of so-called "stingray" devices— surveillance tools that pretend to be cell towers so they can intercept mobile network traffic.

The bill would only permit a government agency to collect data using a stingray if it obtained a traditional search warrant or if it carried out its investigation under the Foreign Intelligence Surveillance Act (FISA), which does not permit the targeting of Americans.

No evidence collected through a stingray without a warrant or outside the FISA process could be used in a trial, congressional hearing, or other federal, state, or local proceeding.

The DOJ's better-late-than-never guidance could become law, turning violations of the former policies into actionable civil rights complaints. Better yet, the abuse of Stingray devices could lead to the dismissal of improperly-obtained evidence. The codification of the warrant requirement also means agencies will have more trouble obscuring the origin of introduced evidence and will be creating a discoverable, possibly FOIA-able paper trail.

The bill has bipartisan support, which is always helpful. It also has a bit of propulsion thanks to the gradual uncovering of widespread usage for bog-standard criminal investigations and widespread secrecy that has led to bogus FOIA request denials and the dismissal of criminal indictments.

The question now is whether the bill will survive intercessions on behalf of the DOJ, which would like to appear Strong on Stingrays but without actually having to deal with the public's complaints of civil liberties violations. Expect to see child killers, kidnappers and terrorists seated at the stakeholders' table on behalf of the FBI and others if this bill gains momentum.

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Filed Under: doj, imsi catcher, jason chaffetz, john conyers, peter welch, spying, stingray, surveillance, warrant

11 Comments

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Anonymous Anonymous Coward, 3 Nov 2015 @ 4:01pm

Blind Justice
“Expect to see child killers, kidnappers and terrorists seated at the stakeholders' table…”

Meaning current and past members of the law enforcement communities along with those that blindly support them?
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AricTheRed (profile), 3 Nov 2015 @ 4:20pm

Re: Blind Justice
I think that Tim also includes (I know I do) many elected officials in that group as well...
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Anonymous Coward, 3 Nov 2015 @ 4:23pm

Parallel Construction?
I hope they're also planning to explicitly close the "parallel construction" loophole on this, such that if it is found that a stingray device was used in parallel with other investigative means and without the appropriate oversight, ALL evidence is thrown out, not just the evidence reported to be from the stingray. Otherwise, we're back to where we were before the general public found out about the devices... they're used to gather evidence that can be reconstructed in parallel in a convincing manner before the court, and the LEO involved doesn't even need to mention the device.

Maybe a Stingray registry is in order? After all, it's already illegal to use such a device if you're not a LEO.
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Rekrul, 3 Nov 2015 @ 4:38pm

This will go absolutely nowhere.
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Anonymous Anonymous Coward, 3 Nov 2015 @ 4:39pm

Re: Re: Blind Justice
You are so correct. I often do as well. Lately however I see them more as corrupt practitioners of treason and usurpers of the Constitution for the most part.
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Rapnel (profile), 3 Nov 2015 @ 4:45pm

Nice.
I hope it'll stick. And without carrier sized loopholes. A government overrun with secrecy in dealing with its own citizens bears little resemblance to one of, for or by any people. If something is not directly relevant to the defensive posture that prevents total annihilation then it belongs on the table, for all to see, up to and including where, how and what for.

A police force is no place for secrecy when that secrecy enables unaccountable brute force manipulation of any law or any person. Rights are rights for a reason. Government secrecy is a privilege. hush hush for your intrusive toys has no place being hidden behind the iron blue throne of any LEO for any "investigation".

Get a warrant. A real one.
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Justme, 3 Nov 2015 @ 5:12pm

Re: Parallel Construction?
The biggest problem is letting law enforcement be the gate keeper and it doesn't sound like the bill address it. They could still use it without a warrant and then obtain a warrant based on a tip from a imaginary informant.

The only thing that going to stop that kind of abuse is an outside entity controlling access to the technology to ensure access is given only with a valid warrant and a transparent public accounting of every time it is used.
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Hans, 3 Nov 2015 @ 5:18pm

I thought we'd already covered that
"The DOJ's better-late-than-never guidance could become law, turning violations of the former policies into actionable civil rights complaints."

Huh, and here I thought that we'd already covered that with this United States Constitution thing. Not to mention FCC regulations for unlicensed transmissions, illegal reception, and interfering with public communications. Silly me.
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Anonymous Coward, 3 Nov 2015 @ 10:04pm

of course that will make all illegal activity by the DoJ retroactively legal no doubt.

Tyranny growing by leaps and bounds by the apathy of the citizens.
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Anonymous Coward, 3 Nov 2015 @ 10:08pm

Re: Re: Parallel Construction?
the only thing that will ultimately stop this is hanging the people supporting removing the rights people have as that only ends in 1 direction. The slippery slope as it were. you decide some rights don't matter then eventually you decide all rights don't matter and do what you want to people with no oversight
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Anonymous Coward, 4 Nov 2015 @ 9:16am

I advise to turn off your phone or just don't use any because they'll spy anyway.
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