DHS Probably Didn't Clone Phones To Intercept Protesters' Communications

Privacy

from the more-fuckedupness-from-the-feds dept

More information continues to leak out about the federal government’s ad hoc anti-riot strike force (or whatever) that made its nationwide debut in Portland, Oregon. The federal officers — composed of DHS components, US Marshals Service, and Federal Protective Services — made an immediate impression on the nation as unmarked officers hauled protesters off in unmarked vehicles to undisclosed locations for questioning.

The feds immediately made things worse, resulting in a restraining order being sought after federal officers refused to stop attacking journalists, lawyers, and observers present at the protests. The DHS also began compiling “intelligence reports” on journalists covering the Portland protests, as well as other journalists who had published leaks about the federal response in Oregon.

Information obtained by Ken Klippenstein for The Nation shows the DHS and other federal agencies acting like they were headed to a war with foreign combatants, rather than limiting themselves to protecting federal buildings in Portland.

A current DHS official described a colleague with expertise in electronic surveillance who was being deployed to Portland. But for what purpose? “Extracting information from protester’s phones,” the DHS official said. While in Portland, an interagency task force involving DHS and the Justice Department used a sophisticated cell phone cloning attack—the details of which remain classified—to intercept protesters’ phone communications, according to two former intelligence officers familiar with the matter.

Cell phone cloning involves stealing a phone’s unique identifiers and copying them to another device in order to intercept the communications received by the original device. The former intelligence officials described it as part of a “Low Level Voice Intercept” operation, declining to go into further detail—one of them citing the sensitive nature of the surveillance tool and the other an ongoing leak investigation within I&A [Intelligence & Analysis].

If this is accurate, there are some obvious First and Fourth Amendment issues here. Targeting protesters engaged in protected speech is already wrong, but seeking to intercept their communications is something that requires a whole lot of probable cause. Wiretapping requirements are more stringent (or at least, they’re supposed to be) than they are for other types of searches because of the obvious subversion of privacy expectations.

Beyond that, engaging in sophisticated cloning attacks is not “Low Level Voice Intercept.” This term — at least when used by the US military — simply means scanning airwaves to find radio and mobile transmissions. Once located, they can be listened to. This generally refers to radio chatter, not the cloning of phones to eavesdrop on private communications between individuals.

This suggests the use of Stingray device to snag device identifiers and (possibly) engage in call interception. Stingray devices are capable of intercepting communications, but we’ve never seen one used that way domestically. It may not have happened here either, but it certainly would have helped identify devices and locate surveillance targets. The DHS has a warrant requirement for Stingray deployment, but there’s no mention of warrants in this article. Some exceptions apply, but the DHS would still need a pen register order and that would also require a judge’s okay.

That this was used domestically to possibly spy on people engaged in peaceful protests is concerning. That it was used to try to find evidence to back President Trump and AG Bill Barr’s ridiculous assertions that “anitfa” is an organized terrorist group is even worse. And if this is indeed what happened, it seems unlikely federal officers (which may have included “volunteers” from the DEA) had the probable cause necessary to snoop on private communications.

Even former spies are uncomfortable with the tactics used here.

The former intelligence officers agreed that the Low Level Voice Intercept operation had been conducted on the ground, was far more invasive than aerial surveillance, and involved equipment that I&A did not have access to.

“[There were] at least two federal agencies and there was some spooky shit going on,” one former intelligence officer said of the Portland operation.

It’s still unclear what the DHS actually did here. The article refers to the same actions as both “intercepting communications” and “extracting information.” Undoubtedly, there’s some “spooky shit” going on, but none of the former officials were present for whatever spookiness the DHS engaged in. The DHS has Stingrays and could have used them illegally. But it seems more likely it sent out an expert to help federal agents pull information from devices seized from protesters. The “cloning” discussed most likely refers to cloning the device’s contents, rather than the device itself. This is common when phones are seized by law enforcement. Again, a warrant is required but the cloning often occurs before the warrant is sought to ensure law enforcement has access to it.

Then there’s this, which suggests a DOJ component brought in a phone-cracking device (GrayKey, Cellebrite, etc.) to make it easier to extract device contents.

A current DHS official described how a colleague who was being deployed to Portland had alluded to using the Drug Enforcement Agency (DEA), part of the Justice Department, for the purposes of accessing protesters’ phones. “He said he needed some sort of ‘special key’ in order to …He said that DEA has that capability and vaguely alluded to possibly borrowing or using one from another agency once he got to Portland.”

If the DHS actually engaged in the interception of cellphone communications, it would be breaking new domestic surveillance ground. But it seems more likely it accessed a bunch of devices’ contents and made copies of the data. Until more information surfaces, it’s probably safe to assume federal agencies weren’t listening in on private communications.

Filed Under: 1st amendment, dhs, federal protective services, portland, protests, stingray, surveillance, us marshals