Indiana Police Refuse To Hand Over Stingray Docs Because Someone Might Attack The Annual Mule Day Parade

from the not-doing-much-to-keep-flyover-country-from-looking-like-uncultured-hicks dept

Another state agency is refusing to release Stingray documents. This time, it's not just about the not-even-a-secret-anymore "means and methods" or the supposed jeopardization of ongoing investigations. Nope, this time the nexus is terrorism, as Ars Technica's Cyrus Farivar reports. And not just any terrorism, but the "blowing up a cornfield" variety.

[T]he reason for the denial is a bit strange—the department seems to claim that releasing the requested information constitutes a possible risk to terrorism or even "agricultural terrorism."

The refusal, given to privacy activist/Stingray doc enthusiast Mike Fitz-Lacabe, cites a state statute that limits disclosure of documents related to terrorism mitigation, including the sort of terrorism that apparently never has actually happened anywhere in the US but is still a great matter of concern for the state. Not that the concern makes any sense.

"Months ago, I hadn’t seen the myriads of reasons that agencies and their lawyers give for claiming records are exempt," Katz-Lacabe told Ars. "I think the reference to agricultural terrorism is perplexing and perhaps ludicrous. Maybe it’s a Midwest thing."

Possibly. The Midwest is heavily-reliant on agriculture. Indiana, it seems, is more heavily-reliant on existential threats. Farivar points out that Indiana has been voted "Most Likely to be Attacked by Terrorists" by local law enforcement and its DHS branch office. Farivar links to a 2006 New York Times article that shows the state has designated nearly 8,600 sites as potential terrorist targets in the National Asset Database. What's included on the list suggests state fearmongers simply added any place that might draw a crowd of two or more individuals.

It reads like a tally of terrorist targets that a child might have written: Old MacDonald’s Petting Zoo, the Amish Country Popcorn factory, the Mule Day Parade, the Sweetwater Flea Market and an unspecified “Beach at End of a Street.”

To put it in context, Indiana claims nearly 3,000 more terrorist targets than the big daddy of terrorist-targeted assets, New York City. And that's a state that has actually been hit with a terrorist attack. It also claims almost 1,500 more "targets" than the next most dangerous state to live in… Wisconsin.

So, the National Asset List is largely comprised of bullshit. As is the excuse given to Fitz-Lacabe. Many agencies have acquired Stingrays with counterterrorism grants from the federal government. And almost every agency uses their Stingrays to tackle mundane criminal activity ranging from drug dealing to misdemeanor theft. Terrorism is the always-handy excuse. As long as the federal government continues to justify its own overreach with cries of "terrorists!" state and local agencies will do the same.

Filed Under: indiana, police, stingrays

DOJ Says Federal Agents Must Seek Warrants For Stingrays; Forbids Collection Of Communications

from the long-delayed-but-mostly-good-news dept

Federal law enforcement agencies of America: prepare to get your Stingray house in order. The DOJ has just issued its official guidance for Stingray use and it's full of stipulations that won't make the FBI, DEA or any other participant in a federal investigation very happy.

The seven-page document opens by reminding readers that Stingrays are used for Very Important Work (fugitive apprehension, recovery of kidnapped children, narcotics investigations, etc.). And certainly this is true. But they're also used to hunt down people suspected of misdemeanor theft and used regularly in other non-critical law enforcement work.

After that, it gets to the new rules for Stingray use. Casual use and concerted cover-ups are no longer allowed.

First off, the DOJ states that any IMSI catcher used by a covered agency must be set up to comply with pen register orders, i.e., no interception of communications. This includes the interception of text messages, emails or any other data that can be gathered from a nearby cellphone.

While the policies require restricting the device to information comparable to that received through pen register orders (if you don't count all the other cellphone connections harvested during the deployment of the device), law enforcement agencies won't be able to use these orders to permit deployment of IMSI catchers. Instead, they'll have to seek actual warrants.

While the Department has, in the past, appropriately obtained authorization to use a cell-site simulator by seeking an order pursuant to the Pen Register Statute, as a matter of policy, law enforcement agencies must now obtain a search warrant supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure (or the applicable state equivalent), except as provided below.

Not only will warrants be required, but the search warrant must specifically note that it is being requested for the use of IMSI catchers.

When making any application to a court, the Department's lawyers and law enforcement officers must, as always, disclose appropriately and accurately the underlying purpose and activities for which an order or authorization is sought. Law enforcement agents must consult with prosecutors in advance of using a cell-site simulator, and applications for the use of a cellsite simulator must include sufficient information to ensure that the courts are aware that the technology may be used.

There are exceptions, of course, but even the exceptions are more limited than we've come to expect. Exigent circumstances exceptions can be used to expedite the process (read: skip warrant acquisition) but the use of the device still needs to comply with the pen register statute (call info only; no communications). If this minimal paperwork still seems like it might take too long, the agency wishing to deploy needs to seek internal approval -- which means a quick run up the chain of command to the local US Attorney's office, who will then contact the DOJ on the agency's behalf. (Unless it's a non-federal investigation, in which case the chain of command stays local.)

There are also limits placed on the gathering and retention of non-targeted phone data. If a known device is targeted, all data must be deleted once located, or at least once daily. For unknown devices, all data must be deleted upon identification and all data within 30 days. In addition, any application for a Stingray warrant must include information regarding proposed minimization procedures.

Now for the bad news.

The DOJ refers to this as "guidance" and the document contains a footnote that seemingly exempts the DOJ from any form of accountability should it fail to follow its own rules.

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.

The other downside is that it only deals with investigations by federal DOJ components or the DOJ's involvement in state or local cases. This leaves local agencies free to continue hiding Stingray use from judges, prosecutors and defendants as well as avoid seeking warrants before deployment. Somewhat confusingly, the document contains a footnoted reference to "non-federal cases" which deals with the approval needed at local levels for exigent circumstance deployment, but nowhere else in the document does it say this applies to anything but federal agencies under the DOJ's purview.

Still, it's more good than bad and it's a giant step forward from the secrecy these devices have operated under for most of a decade, if not longer. Hopefully, the DOJ will continue to issue more guidance, hopefully aiming some of it local law enforcement agencies who have been just as guilty about hiding usage and deploying devices carelessly.

Filed Under: doj, guidelines, imsi catcher, non-disclosure agreements, stingrays

Police Regularly Use Stingrays Without A Warrant To Find Petty Criminals, Then Try To Hide That Fact

from the more-of-the-same dept

Over the last few years, we've published a ton of stories about the growing police reliance on Stingray cell site simulator devices (also known as IMSI catchers), that mimic a real cell phone tower and help provide the location of a certain mobile phone. As we've written, these devices have been super popular with police departments, who often receive them from the federal government with strict non-disclosure agreements, which means law enforcement has been known to lie to courts or simply drop cases where the usage is at risk of coming out in court.

It seems that this story is getting more and more national attention. Brad Heath, over at USA Today, has a fairly deep dive into the fact that police are using these devices to solve petty crimes all the time, without a warrant, and then refusing to tell defendants how they were caught (which is a bit of a constitutional no-no). Heath specifically was able to get a police surveillance log in Baltimore, which detailed how the devices were used there.

The records show that the city's police used stingrays to catch everyone from killers to petty thieves, that the authorities regularly hid or obscured that surveillance once suspects got to court and that many of those they arrested were never prosecuted.

Defense attorneys assigned to many of those cases said they did not know a stingray had been used until USA TODAY contacted them, even though state law requires that they be told about electronic surveillance.

“I am astounded at the extent to which police have been so aggressively using this technology, how long they’ve been using it and the extent to which they have gone to create ruses to shield that use,” Stephen Mercer, the chief of forensics for Maryland’s public defenders, said.

Some of the cases are absolutely ridiculous -- such as the one where an angry husband grabbed his wife's phone and left the house. Police declared it a theft and used an IMSI catcher to track it down... but by that point, the husband had already given it back to his wife, so the police just showed up at her home where she already had the phone. Also, because it's so easy to use these devices to just go and locate anyone, Baltimore police sometimes used it just to find the location of witnesses (i.e., people who haven't committed any crimes). That's going way over the line of what's appropriate.

These things are being used so often in so many cases with so little transparency, one hopes that the growing press attention will finally lead to much more accountability on how these devices are used and a requirement for a warrant.

Filed Under: baltimore, cell site simulators, imsi catchers, law enforcement, police, privacy, stingrays

Boston Police Hiding Administrative Stingray Docs Behind 'Investigatory Materials' Exemption

from the we're-not-gonna-talk-about-Stingray...-in-fact,-we're-gonna-leave-her-ri dept

More Stingray secrecy. MuckRock has been tangling with Boston's police department for several months over the release of Stingray-related documents. So far, the BPD has managed to keep these out of MuckRock's hands.

The first response it offered when denying Mike Katz-Lacabe's request was filled with boilerplate and nearly nonsensical legalese.

The information you have requested is exempt from disclosure by MGL c. 4s. 7(26)(f) and (n). Disclosure of the information contained in these documents would not be in the public interest and would prejudice the possibility of effective law enforcement. More specifically, the protection of such investigatory materials and reports is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus protect the safety of private citizens.

There's a healthy debate to be had about whether Stingray surveillance is in "the public interest," but that debate necessarily includes the public, and the denial of this request cuts the public out of the loop. Arbitrarily deciding whether or not a document is in the "public interest" shouldn't be left entirely in the hands of the agency seeking to withhold information -- any "prejudicing" of "possibly effective law enforcement" notwithstanding.

MuckRock appealed this decision. The state stepped in and told the Boston PD that it couldn't just issue boilerplate without explanation in response to these requests.

Your response states that the Department is withholding the responsive records because disclosure would not be in the public interest and would prejudice the possibility of effective law enforcement. You also state that withholding such information is essential to ensure that the Department can continue to effectively monitor criminal activity. However, this response does not explain how these requested records pertain to an ongoing investigation, confidential investigative techniques, or witness statements and also fails to demonstrate how disclosure of these particular records would prejudice investigative efforts as required by Exemption (f). With regard to Exemption (n), this response merely cites the exemption and does not address the security-related rationale needed to justify withholding records under this exemption.

As a result, the Department has failed to satisfy its burden of proving with specificity why the responsive records may be withheld in their entirety under Exemption (f) and Exemption (n). The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O(a). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and Regulations.

Accordingly, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Katz-Lacabe with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide to Mr. Katz-Lacabe a written explanation, with specificity, how a particular exemption applies to each record.

Well, the Boston PD has fulfilled the letter of the state's order, and has provided Mike Katz-Lacabe with a more verbose answer, albeit one that is completely unchanged in terms of results. No documents will be released but, hey, at least the explanation runs an additional half-page!

More specifically, disclosing the existence of and capabilities provided by the type of equipment/technology referenced in your request would reveal sensitive technological capabilities possessed by the Department, and other members of the law enforcement community, and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement. This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal investigations. Additionally, the information contained within the requested documents could be used to construct a map or directory of jurisdictions that possess the investigative capabilities, thereby providing further information for potential suspects that could be used to evade detection.

Through public disclosures, the use of this technology will be rendered essentially useless for future investigations. In order to ensure that such and any information related to its functions, operation and use, is protected from potential compromise it is not subject to disclosure as a public record.

As MuckRock's Shawn Musgrave points out, the BPD has dropped its unexplained (n) exception ("likely to jeopardize public safety") in response to the state's clarification orders, but it still is claiming the documents sought are "investigatory materials," even though they really aren't.

Mr. Katz-Lacabe has already filed a subsequent appeal to the state. He contends that his request for fiscal documents and non-disclosure agreements — which all state and local law enforcement agencies are required to sign with the FBI prior to acquiring cell phone tracking devices — do not qualify as investigatory materials.

And they aren't. The FBI issues a slightly-tweaked boilerplate itself -- the NDAs it forces local law enforcement agencies to sign. Fiscal documents reveal little about capabilities and, depending on the extent of the redactions -- very little about what, if any, equipment is in the possession of these agencies. None of the requested documents come anywhere close to providing specifics about past or ongoing deployments.

The BPD's extreme reluctance to release these documents could very well trace back to the non-disclosure agreement it won't release. It may also be concerned that fulfilling this request could result in the release of actual investigatory materials by mistake -- a concern many agencies share after FOIA requests have resulted in "oversharing" by inexperienced FOIA response staff. No matter what the rationale for the full non-disclosure, the BPD's reliance on these exemptions for these specific documents is clearly bogus.

Filed Under: boston, foia, investigatory materials, stingrays

Legislators Strip Funding For Warrantless Use Of Stingrays By FBI, Take Money From The DEA To Buy Bodycams

from the CATCH-AN-IMSI-FUNDRAISER!-TIX-3/$5!! dept

The passage of appropriations bills is a seemingly casual process in which any legislator can attempt to hitch his or her hobbyhorse to it as it makes its way slowly to a vote. (And then to a government shutdown.) "Rob Peter/Pay Paul" amendments are offered for quick floor votes, adding millions to one program while siphoning the equivalent amount from another. Other amendments are simply of the "Rob Peter" variety, in which funding is stripped from programs or activities a legislator doesn't agree with.

Given the recent legislative activity surrounding US surveillance programs and the ongoing exposure of the FBI's tactics and technology, it's somewhat unsurprising that lawmakers are taking a shot at defunding some of the more questionable efforts. Darrell Issa, for example, offered an amendment stating that if the FBI wants to deploy its Stingray devices without a warrant, it will need to hold a bake sale to pay for it.

The amendment prohibits funding for federal law enforcement to conduct non-court-ordered “stingray” operations that collect bulk electronic data from individuals. The amendment was adopted on a voice vote.

This is of some import, although the FBI now claims it gets a warrant before deploying Stingrays. It will probably edge around this defunding by claiming it doesn't use Stingrays to collect data in bulk (sort of true, if used for their intended purpose and with proper minimization) or by pointing at its exemptions to its self-imposed warrant requirements, which are big enough you could fly a single-engine plane bristling with antennas and cameras through them.

In addition to other surveillance-targeting amendments, like defunding of any future NIST/NSA partnerships to backdoor encryption and the FBI/DOJ's use of backdoor surveillance via wiretapping laws, other interesting amendments were proposed and passed.

Rep. Gosar (R-AZ) – The amendment increases funding for the DOJ Office of the Inspector General by $1.7 million, offset by a reduction to the DOJ General Administration – Salaries and Expenses account.

Michael Horowitz -- the Inspector General for the DOJ -- has been battling the FBI and DEA for months now over the release of documents his office has requested. So far, the battle has been futile, but some additional funding will help ensure his office will continue to try to hold the DOJ's agencies accountable for their misconduct and failures. If nothing else, Horowitz has been both dogged and vocal while performing his oversight duties -- something that very obviously hasn't endeared him to the agencies he polices. I see no reason not to give this man, and his office, more funding.

Rep. Castro (D-TX) – The amendment increases the Community Trust Initiative, which provides grants for police body cameras, by $10 million, offset by a reduction to the DEA Salaries and Expenses account.

Body cameras are no panacea, but they're definitely better than taking no action at all. The best part about this is that it forces the DEA to fund a program many law enforcement agencies are hesitant to adopt. The ironic part is that the worst behavior in law enforcement (i.e., abuse of no-knock warrants, asset forfeiture) is tied to the Drug War. True accountability is still little more than a starry-eyed ideal, but taking $10 million from the DEA for this program is definitely a better use of that money.

Rep. Grayson (D-FL) – The amendment prohibits funding to compel a journalist or reporter to testify about information or sources that they regard to be confidential.

This is interesting, especially in light of the DOJ's efforts to compel New York Times journalist James Risen to reveal his sources. There's more to it than just the summation of this amendment, but it's far too much to cover here. (Hint: define "journalist." Once again, the government wants to be able to make that determination, probably on a case-by-case basis.)

Rep. Luetkemeyer (R-MO) – The amendment prohibits funding for DOJ’s “Operation Chokepoint.”

If this sticks, Team America: Morality Police™ will have to hold Bitcoin auctions or whatever if it wishes to keep porn performers and other blacklisted undesirables from availing themselves of bank services.

The attendant downside to these easily-passed amendments is that they can just as easily be deleted before the appropriation bill's final passage, especially if those targeted are able to apply enough pressure to block the bill's package with these intact.

Filed Under: appropriations, bodycams, congress, darrell issa, dea, fbi, stingrays

California Legislators Pushing Warrant Requirement For All Access To Electronic Information, Including That Obtained By Stingrays

from the strong-nod-towards-long-ignored-rights dept

Good news from California: a bill requiring warrants for Stingray device usage (among other things) has passed out of a Senate committee and is headed for an assembly vote.

Among other sweeping new requirements to enhance digital privacy, the bill notably imposes a warrant requirement before police can access nearly any type of digital data produced by or contained within a device or service.

In other words, that would include any use of a stingray, also known as a cell-site simulator, which can not only used to determine a phone’s location, but can also intercept calls and text messages. During the act of locating a phone, stingrays also sweep up information about nearby phones—not just the target phone.

Despite similar bills being killed by governor vetoes in 2012 and 2013, California legislators are still looking to reform the state's privacy laws. For one thing, this new bill would put the state's Electronic Communication Privacy Act in compliance with the Supreme Court's recent Riley v. California decision (warrant requirement for cell phone searches incident to arrest), as Cyrus Farivar points out.

The committee passed it with a 6-1 vote, suggesting there's broader support for privacy and Fourth Amendment protections now than there were in the pre-Snowden days. Of course, the usual opposition was on hand to portray those pushing for a warrant requirement as being in favor of sexually abusing children.

[Marty] Vranicar [California District Attorneys Association] told the committee that the bill would "undermine efforts to find child exploitation," specifically child pornography.

"SB 178 threatens law enforcement’s ability to conduct undercover child porn investigation. the so-called peer-to-peer investigations," he said. "Officers, after creating online profiles—these e-mails provide metadata that is the key to providing information. This would effectively end online undercover investigations in California."

Vranicar failed to explain how an officer conducting an ongoing investigation would be unable to obtain a warrant for PTP user data… unless, of course, the "investigation" was nothing more than unfocused trolling or a sting running dangerously low on probable cause. Nothing in the bill forbids officers from using other methods -- Fourth Amendment-respecting methods -- to pursue those suspected of child exploitation. What it does do is make it more difficult to run stings and honeypots, both of which are already on shaky ground in terms of legality.

Additionally, the bill demands extensive reporting requirements pertaining to government requests for data, and makes an effort to strip away the secrecy surrounding search warrants.

1546.2 (a) Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or issues an emergency request pursuant to Section 1546.1 shall contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.

(b) If there is no identified target of a warrant, wiretap order, or emergency request at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, to all individuals about whom information was disclosed or obtained.

This isn't blanket coverage or without exceptions. Officers can still offer sworn affidavits in support of sealing to the court, which may then seal warrants on a rolling 90-day basis at its discretion.

Law enforcement will continue to fight this bill, but its opposition seemingly had no effect on the Public Safety Committee. This bill brings the government into a much tighter alignment with the wording and the intent of the Fourth Amendment. The arguments against it demonstrate that the law enforcement community continues to prize efficient policing over the public's (supposedly) guaranteed rights.

Filed Under: california, imsi catchers, stingrays, warrants

FBI Says All Public Records Requests For Stingray Documents Must Be Routed Through It

from the the-first-rule-of-Stingray-Club... dept

The FBI definitely does not want the nation's law enforcement agencies to talk about their Stingray devices. Manufacturer Harris Corporation has aided and abetted this secrecy -- first by misleading the FCC on the intended use of the devices (emergencies only) and then by claiming the FCC required law enforcement to sign non-disclosure agreements with the FBI, something the FCC has denied.

Other federal law enforcement agencies have also helped keep documentation on Stingray usage out of the public's hands. Last year, the US Marshals stepped in to physically remove documents from the Sarasota (FL) police department to prevent them from being turned over to the ACLU in response to a FOIA request. The US Marshals Service has also ordered local law enforcement agencies to lie about their use of Stingray devices -- not just in terms of FOIA requests but while presenting evidence in court.

Ars Technica has come across another document involving the FBI, Harris Corp. and lying. Originally obtained and published by the Minneapolis Star Tribune, the memo (written by the FBI) states that any open records requests for Stingray-related documents must be routed through the FBI first [pdf link]:

In the event that the Minnesota Bureau of Criminal Apprehension receives a request pursuant to the Freedom of Information Act (5 USC 552) or an equivalent state or local law, the civil or criminal discovery process, or other judicial, legislative, or administrative process, to disclose information concerning the Harris Corporation [REDACTED] the Minnesota Bureau of Criminal Apprehension will immediately notify the FBI of any such request telephonically and in writing in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels.

As Cyrus Farivar points out, similar memos have very likely been sent out to other local law enforcement agencies. There's a lot more in the very restrictive agreement, most of it blacked out. The letter from the FBI opens by making the dubious claim that releasing this information would render the agency unable to "protect the public from terrorism and other criminal activities." This is the normal language of secrecy and it has very little to do with the public's protection and everything to do with withholding responsive documents. The capabilities and technology behind Stingray devices are already public knowledge. Criminals and terrorists are already aware that cell phones, while useful, are also little pocket narcs that generate tons of data easily obtained with little more than a subpoena -- or actively obtained with these devices. The "method and means" can't be further compromised. All the FBI is doing is burying information about legally-dubious devices in common usage.

The FBI has dropped several restrictions on this particular law enforcement agency, including:

The Minnesota Bureau of Criminal Apprehensions will not distribute, disseminate, or otherwise disclose any information concerning the [redacted] to the public, including to any non-law enforcement individuals or agencies.

[...]

The MBCA will not distribute, disseminate, or otherwise disclose any information concerning [redacted] provided to it to any other law enforcement or government agency without the prior written approval of the FBI.

The FBI also states that it will intervene in court proceedings to keep this information secret.

A copy of any court order in any proceeding in which the MBCA is a party directing disclosure of information concerning the Harris Corporation [redacted] will immediately be provided to the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise.

And who knows what the FBI is preventing here, but it would seem to be pretty expansive.


Not only is there very limited value in withholding this information, considering how much has been exposed despite these entities' efforts, but there's every indication that law enforcement agencies (with the FBI's help) are sabotaging both accountability and the discovery process with these demands. Both are ethically unsound, and the latter borders on unconstitutional.

Filed Under: fbi, investigations, privacy, stingrays

Senators Leahy & Grassley Quiz DOJ & DHS About Secret Fake Phone Towers Intercepting Calls

from the good-for-them dept

We've written plenty about Stingrays and other "IMSI Catcher" devices that allow law enforcement to set up what are effectively fake cell phone towers, designed to intercept calls and locate certain individuals. These devices are deployed in near total secrecy, often by law enforcement who got them from the federal government. There is little to no oversight over how these are used (and abused). The attempts to keep the details a total secret represent really egregious behavior from all involved. As we've covered, police have claimed that non-disclosure agreements with the manufacturers (such as Harris Corp.) prevent them from getting a warrant to use the devices. The DOJ, somewhat famously, had a whole plan for how to mislead judges about the use of these devices, with official documentation telling DOJ officials to be "less than explicit" and "less than forthright" to judges about how the tech was being used. In some cases, the US Marshals have stepped in and seized documents from local police forces to block them from being released in response to FOIA requests.

In short, law enforcement really doesn't want how it uses these devices revealed. And yet, reporters and activists keep digging up more information, including the WSJ finding out that the US Marshals (them again!) have been putting airborne versions of these devices, called DRT boxes, on airplanes and flying them over cities, likely scooping up information on tons of innocent people with no warrant.

At least some in our government are concerned about this. Senators Patrick Leahy and Chuck Grassley have been pressing government officials on this, and before the holidays sent a letter to Attorney General Eric Holder and Homeland Security Boss Jeh Johnson demanding answers. One very interesting tidbit is that in response to some of this public disclosure, the FBI now, at least, gets warrants before using the technology -- but the Senators would like more details:

We wrote to FBI Director Comey in June seeking information about law enforcement use of cell-site simulators. Since then, our staff members have participated in two briefings with FBI officials, and at the most recent session they learned that the FBI recently changed its policy with respect to the type of legal process that it typically seeks before employing this type of technology. According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice. Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology.

But, still, the Senators would like a few more details:

The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them.

For example, we 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.

We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests.

The specific questions being asked:

1. Since the effective date of the FBI’s new policy:

a. How many times has the FBI used a cell-site simulator?
b. In how many of these instances was the use of the 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. How many times has each of the exceptions to the search warrant policy, including those listed above, been used by the FBI?

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?

3. What is the FBI’s current policy on the retention and destruction of the information collected by cell-site simulators in all cases? How is that policy enforced?

4. What other DOJ and DHS agencies use cell-site simulators?

5. What is the policy of these agencies regarding the legal process needed for use of cell-site simulators?

a. Are these agencies seeking search warrants specific to the use of cell-site simulators?
b. If not, what legal authorities are they using?
c. Do these agencies make use of public place or other exceptions? If so, in what proportion of all instances in which the technology is used are exceptions relied upon?
d. What are these agencies’ policies on the retention and destruction of the information that is collected by cell-site simulators? How are those policies enforced?

6. What is the Department of Justice’s guidance to United States Attorneys’ Offices regarding the legal process required for the use of cell-site simulators?

7. Across all DOJ and DHS entities, what protections exist to safeguard the privacy interests of individuals who are not the targets of interception, but whose information is nevertheless being collected by cell-site simulators?

Anyone taking bets on how few of these questions will actually be answered?

Filed Under: chuck grassley, drt boxes, imsi catchers, patrick leahy, privacy, stingray, stingrays, us marshals, warrants
Companies: boeing, harris corp.

Justice Department Defends US Marshals' Airborne Cell Tower Spoofers; Refuses To Acknowledge Program Exists

from the may-or-may-not-have-repeatedly-violated-the-Fourth-Amendment dept

The Justice Department has been summoned to say a few words in defense of the US Marshals' Cessna-mounted cell tower spoofers. And while it tried to leave a lot unsaid, it actually said quite a bit.

The Justice Department, without formally acknowledging the existence of the program, defended the legality of the operation by the U.S. Marshals Service, saying the agency doesn’t maintain a database of everyday Americans’ cellphones.

Because America's criminal element is forever only moments away from permanently escaping the grasp of law enforcement, the DOJ has refused to confirm or deny the existence of technology everyone already knows exists -- IMSI catchers and single-engine aircraft. The DOJ's caginess is commendable. I'm sorry, I mean ridiculous. Here's the same official further protecting and defending The Program That Dare Not Confirm Its Existence, using statements that indicate the program exposed by the Wall Street Journal not only exists, but functions pretty much as described.

A Justice Department official on Friday refused to confirm or deny the existence of such a program, because doing so would allow criminals to better evade law enforcement. But the official said it would be “utterly false’’ to conflate the law-enforcement program with the collection of bulk telephone records by the National Security Agency, a controversial program already being challenged in the courts and by some members of Congress.

No one's conflating the feds' airborne 'Stingray' with the NSA's ongoing bulk phone records collections. All people have done is note that surveillance technology of this sort has the ability to collect (and store) millions of unrelated phone records in a very short period of time.

Furthermore, the unnamed official would like us to remember that this program [WHICH MAY NOT EXIST I DON'T EVEN KNOW] is completely legal [PROBABLY TWICE AS LEGAL AS THE NSA'S PHONE THING IF THIS IS HAPPENING WHICH IT MAY NOT BE].

The official didn’t address the issue of how much data, if any, is held on the dirtboxes by law-enforcement officials but said the agency doesn’t maintain any databases of general public cellphone information and said any activity is legal and “subject to court approval.’’

Other officials -- also unnamed -- have stepped up (sort of... in a spineless, anonymous way) to let critics know that the program that has never been officially acknowledged is pretty good at catching bad guys.

The program’s defenders say it has been an effective way of catching fugitives, including drug suspects and suspected killers…

Like the following notorious criminals:

...but they declined to provide specific examples in which it was used.

Probably because it may or may not exist, etc.

Officials familiar with the program noted that it was "minimally intrusive," while simultaneously having an effective range that covers "most of the US population." It may not be the NSA's bulk records program, but it's not exactly in any danger of being championed by civil liberties advocates.

Here are a few government officials who aren't familiar with the implausibly denied program.

“We were not aware of this activity,’’ said Kim Hart, a spokeswoman for the FCC, which licenses and regulates cell-service providers.

Another IMSI catcher and another FCC denial. It appears that staying ahead of criminals also means withholding information (or directly lying to) regulatory agencies -- which is probably not that big of a deal when you've spent years lying to judges.

And you can add legislators to the long list of those whose first exposure to the US Marshals' "dirtboxes" came via the Wall Street Journal. Senators Edward Markey and Al Franken have both offered statements expressing their concerns about law enforcement's willingness to sacrifice the public's privacy for investigative efficiency.

The DOJ official who claimed this program is "subject to court approval" is being either blithely disingenuous or wholly dishonest. If this investigative technology had ever been approved by our nation's courts, we would have heard of it long before now. This dearth of information indicates that the Marshals' use of airborne IMSI catchers has been withheld the same way the use of its earthbound version has been over the past several years.

Filed Under: dirtboxes, doj, justice department, stingrays, surveillance, us marshals