New Legal Requirements for Stingrays Means Greater Judicial Oversight

Stan Ward

Stan Ward

September 7, 2015

Having finally seen the writing on the wall, that judges are getting wise to their skirting of the law, the Department of Justice (DOJ) has announced that most law enforcement officials will have to obtain warrants before using the secretive Stingray devices.

At present this new policy will not pertain to the Department of Homeland Security, which is viewed as a national security exception. This move comes after exhaustive efforts on the part of privacy advocates over abuses of the existing system.

We’ve covered the travails of the Stingray device extensively in these pages in the past. And the ruling comes amid concerns from both privacy activists and lawmakers that law enforcement has acted for too long with impunity regarding stingrays – four years late by some estimates.

In case you are unfamiliar with the saga, Stingrays are suitcase-like devices that can sweep up basic cellphone data from an entire neighborhood by tricking phones in the area into believing that it is a cell tower. Through this cell tower simulation, a Stingray device obtains the subscriber’s IMSI number and transmits it to police so they can listen in on conversations and determine the location of the phone without the user even picking it up.

But the prickly part of the operation for privacy groups and lawmakers is that the police would routinely employ the Stingray without a warrant or judicial oversight. We reported on instances where the police would avoid telling judges about the device when obtaining search warrants.

The DOJ directive is the first time there has been an effort made to create a legal standard by which stingrays can be used by federal authorities and is a welcome move by the privacy tone-deaf agency of this particularly repressive administration. But, alas, it only pertains to federal authorities, leaving states and local law enforcement agencies free to abuse their use. Deputy Attorney General Sally Yates told reporters in announcing the policy change,

The policy is really designed to address our practices, and to really try to promote transparency and consistency and accountability — all while being mindful of the public’s privacy interest.

That the tool is an effective crime-stopper has not been at issue. What has been alarming is the sly manner in which it has been employed, and the lengths that law enforcement has gone to keep judges in the dark about its use. In addition to this, the fact that any innocent bystander or person happening to travel through an area could be wrongly implicated by a wayward Stingray is cause enough for alarm.

The DOJ acknowledged this in their decree, and Yates notes that,

We understand that people have a concern about their private information, and particularly folks who are not the subjects or targets of investigations.

The new policy allows exceptions in seeking warrants. For example, emergencies such as a national security threat do not require a warrant, nor do other unspecified “exceptional circumstances”. Also of interest is that agencies will not store data they have collected once they have the information they need and must delete at least once a day. Also, authorities will have to chronicle annually how Stingray data was used.

All in all, this represents a good first step which has been long overdue, but if it doesn’t spur states and localities to follow suit, it won’t be as promising a development as it may sound. Moreover, if the federal agencies take the handcuffs off locals regarding revealing information about the Stingrays, it would be even better. Up until now, prosecutors were throwing cases and letting defendants walk rather than reveal the use Stingray technology, at the behest of the FBI. Maybe this new federal policy will prod them to re-examine their practices. The feds have a good “carrot” – the massive money trough in which the states and locals feed.

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