DOJ Misled Judges For Years About How It Was Using Stingray Devices To Spy On People

from the well-of-course dept

How many times does it need to be repeated? If you give law enforcement the ability to spy on people -- even with limits -- law enforcement will always blow through those limits and abuse its powers. It happens over and over and over again. And that becomes doubly true when law enforcement has worked out ways to avoid oversight. Back in 2011, the WSJ broke a huge story about the frequent use by government officials of a technique for mobile device surveillance generically called "stingray" devices (technically, there are a few products used for this, only some of which are actually called Stingrays, but the name is now used to refer to all of them). The device works by pretending to be a mobile phone tower, so devices can connect to it, and law enforcement gets all your data. It's basically a cellular man-in-the-middle attack, with law enforcement being that man in the middle. Yay.

The technology has been a key component in a case involving Daniel Rigmaiden, which we wrote about last year. Rigmaiden was taken into custody (on a fraud charge) and, representing himself in court, he has sought more info on how he was tracked down -- leading to some reluctant disclosure about law enforcement using Stingray devices on questionable authority to find him. In that case, we noted that law enforcement claimed it had a court order to use the technology, but the judge was confused, asking where were the warrants for the use of the device. The judge asked how it was possible that a court order or warrant was issued without the judge ever being told about the technology used in surveillance and was told, simply, "it was a standard practice."

Indeed, that appears to be the case. The ACLU filed a bunch of FOIA (Freedom of Information Act) requests to dig into this and newly released documents show that, indeed, it was apparently standard practice by the DOJ to be "less than explicit" and less than "forthright" with judges in seeking warrants and court orders to make use of this technology. Here's an email that was revealed:
As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement's WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual's location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…
Basically, that's the DOJ admitting that it has not been forthright or explicit in letting judges know that it is going to use this extremely intrusive form of surveillance in seeking approvals. And the courts have been concerned about this. As the ACLU notes, this email was written three years after the Rigmaiden situation happened -- suggesting that the DOJ has been getting away with this sort of thing for many years, without anyone digging in. The ACLU is now arguing that this should be a reason to suppress the evidence obtained via these devices, and will ask the court to "send a clear message" that it cannot hide the truth from federal judges in seeking rubber stamps to violate the privacy of the public.

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  1. identicon
    Anonymous Coward, 28 Mar 2013 @ 1:39pm

    Here's hoping for a continuation of common sense rulings pushing back absurd government spying. NSLs got banned just recently. Hopefully the court in this case will react appropriately to the news that the DOJ has been lying to judges for years.

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