Privacy advocates are hailing as a victory, albeit a small one, a judicial ruling that finally slows the momentum built by the nationwide use of IMSI catchers (cell- site simulators better known as Stingrays.) As a result, the FBI must now come clean about the specifics of the technology their use of Stingrays. These devices, invented and first deployed by the Navy, mimic cell-towers so that phones connect to them instead of real towers. This allows the Stingray operators to indiscriminately hoover-up information gleaned from non-suspect’s cellphones which just happen to connect to these devices.
The judgement stems from the 2008 arrest of Daniel Rigmaiden; a suspect turned transparency advocate, as a result of his bust and a subsequent FOIA request he made afterward. It is a bit ironic that the first gambit to fall in the anti-Stingray game should come as a result of a felon’s ceaseless efforts while behind bars for six years! Because of his tenacity, a federal judge working Ringmaiden’s FOIA suit has ordered the FBI to release eight more Stingray documents, saying the information was not properly withheld.
The court rejected the FBI’s contention that the failure to disclose the information was within the auspices of section 7E of the law, which forbids law enforcement agencies from revealing pertinent information which might hamper their efforts to catch criminals. The FBI now has 90 days to comply with the court’s order. The ruling doesn’t apply to the Stingray use by myriad state and local police departments, who can continue their snooping with impunity and without much judicial oversight.
In this space over the past year, we have documented the abuses of the device by law enforcement in many articles. Raising our ire was the fact that the Stingrays are being employed without knowledge of the judges who issue warrants for surveillance, who are led to believe that the probable cause writs that they execute are for standard phone wiretaps and such. This ruling against the FBI may, therefore, be the tip of the spear, lancing a nasty boil, and may lead to a demand that the police, along with other jurisdictions, properly apprise judges about the potential use of Stingrays in establishing probable cause.
The fascinating thing about this is not only the liberties that the FBI and other law enforcement agencies have taken to conceal use of the devices, but the lengths they have gone to protect their deployment. We documented instances where prosecutors were instructed to let suspected criminals walk, rather than reveal that a Stingray was behind their arrest. To even gain access and use the Stingrays, local law enforcement has been forced to sign non-disclosure agreements with the federal agency or its cohorts.
An alarming reality though, boils down to the fact that even bringing the FBI to heel and making police more forthcoming about the Stingrays won’t alter the one inescapable truth. That is the device will still scoop up information from innocent cellphone users in an area where the Stingrays operate, whether the police or FBI have a warrant or not. For civil liberties activists and privacy advocates alike, this is not acceptable, and more work needs to be done. Perhaps the free market, as usual, will come to their rescue, as apps that can detect the presence of Stingrays are becoming available in the marketplace. In the chess game played by cops and civil libertarians, the game is indeed on!