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?

Reader Comments

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  • identicon
    Anonymous Coward, 5 Jan 2015 @ 3:55pm

    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.

    Which would be about anywhere they wish to use them.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Jan 2015 @ 4:18pm

      Re:

      Yeah, that final 'exception' makes any limits completely pointless, as they can always claim that the location they are setting the stingray towers up is a 'public' one, and the people in that area have no reasonable expectation of privacy.

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 5 Jan 2015 @ 9:36pm

      Re:

      Other than someone overhearing my end of a phone conversation, I have a perfectly reasonable expectation of privacy every frickin' time I use my phone while I'm in a public place.

      reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 5 Jan 2015 @ 4:09pm

    Forgot the final exception

    ...if we think we can do it without being caught

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 5 Jan 2015 @ 4:21pm

    You know, there has got to be an easier way to get empty or completely black sheets of paper than asking questions of government agencies.

    Really, don't the senators have a budget or something they can use to order that sort of thing, having to go through the FBI to get office supplies like this is just sad.

    reply to this | link to this | view in chronology ]

  • identicon
    no way jose, 5 Jan 2015 @ 4:39pm

    Phoenix DHS has a Pilatus PC-12 that has one of these installed in it. Basically anybody living along the border is being captured on these devices on a regular basis.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2015 @ 5:07pm

    It'll all get ignored in a fantastic display of "It's all legal" Jedi hand waving.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 5 Jan 2015 @ 5:10pm

    Every time I hear about politicians "demanding" answers from the DOJ, NSA, FBI or any other agency, I imagine it going down pretty much like this;

    https://www.youtube.com/watch?v=K4iEdMMjqdA

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2015 @ 5:19pm

    Well what response were you expecting? That a federal agency would admit that their actions were at best questionable and at worst illegal and unconstitutional?

    It seems the silicon valley ideology of "move fast and break things" is just as attractive inside the Beltway. Except damaged civil liberties can't be fixed with a reboot.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2015 @ 5:25pm

    >locations at which the FBI deems there is no reasonable expectation of privacy.

    Checks and balances, what are they?

    reply to this | link to this | view in chronology ]

  • icon
    dddimwrong (profile), 5 Jan 2015 @ 5:40pm

    I'm waiting for an enterprising group to defeat this.....

    Just thinking out-loud, why can't someone develop an application that is constantly looking at cell-towers in you're normal area and deciding which ones are the normal ones. Then with this information it should be easy to know when a sting ray is in use locally and display a warning on the cell phone and completely disconnect from the cell network while monitoring for the continued presence of the sting ray. It wouldn't take that long to identify known strengths and directions of known cell towers to determine that there is a sting ray present.

    If the use of sting rays were known and suddenly half of the cell phones is area being serviced by a sting ray went dark, we could render them useless against all but the dumbest criminals.

    Why wait for congress or the courts, let's just make the technology useless.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Jan 2015 @ 5:54pm

      Re: I'm waiting for an enterprising group to defeat this.....

      I seem to recall at least one person mentioned that there are in fact apps that can spot stingray towers, but as I noted at the time, spotting them doesn't do much good if your phone automatically connects to them anyway, so that second half really needs to be added.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jan 2015 @ 7:13pm

      Re: I'm waiting for an enterprising group to defeat this.....

      Hmm... tempting but anyone that does this will quickly find themselves under the gun of law enforcement so damn fast with every electronic communications law being curb stomped down their throats.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2015 @ 5:35am

      Re: I'm waiting for an enterprising group to defeat this.....

      There are already several projects, some of which have been mentioned on Techdirt before.

      AIMSICD
      https://secupwn.github.io/Android-IMSI-Catcher-Detector/

      Snoopsnitch
      https://opensource. srlabs.de/projects/snoopsnitch

      Spidey (WIP)
      http://signup.spideyapp.com/

      Of course they're all Android only because Apple doesn't let you do anything interesting with iOS.
      Ultimately, any technological countermeasure is still merely a reactionary effort that will always be behind the curve. Strong privacy protections can't be downloaded in an app, they need a robust legal defense enshrined in law.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 6 Jan 2015 @ 10:37pm

        Re: Re: I'm waiting for an enterprising group to defeat this.....

        If you're waiting for the law to protect you against the government, especially when the corruption is as widespread as it is now, you're going to be waiting a long time.

        At this point technological defenses are indeed the best bet to protect yourself, as the courts have shown little interest in doing so. Now it would be great if that were no longer the case, but until that impossibility occurs, and the government decides to stop treating it's own citizens and their rights as enemies, if the people want to protect their rights, it's up to them to do so on their own.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2015 @ 5:46pm

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

    No, because betting is only taken on real integers, not imaginary or complex numbers. And sure enough, the reply will include "it's complex", and require imagination to see the truth through the obfuscation.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2015 @ 6:44pm

    Those are some excellent questions! I'm sure the Senators will be briefed in a classified setting. So the public will be left in the dark as usual.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2015 @ 7:06pm

    Hello... hello?

    Senators Leahy and Grassley here! Please join us in a moment of truth!

    We are looking for a little spot light, give us a moment while we feign some concern for our dear peasantry. Yes, that's right... if you have not voted us out yet we are now just seeing what else we can pull. We mean, its not like you know any better, here take some freebies that are really just crumbs from our tables... enjoy peasants and see us for the great people that we are. Thank you! Thank you!

    *as they walk away*
    Fools... the lot of'em... put on a good show and those sycophants will just clap and praise anything. Sad lot really, would almost feel sorry for them if I did not reap so much standing upon their backs!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2015 @ 7:12pm

    what laws are still being enforced then? as I cannot keep track anymore with all the picking and choosing what laws to ignore and what laws to enforce the DoJ is doing

    reply to this | link to this | view in chronology ]

  • icon
    JMT (profile), 5 Jan 2015 @ 9:33pm

    How about some judicial activism?

    "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..."

    These two points should have judges absolutely apoplectic and gunning for any prosecutors who they suspect of using evidence gained by a Stingray device.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Jan 2015 @ 10:47pm

      Re: How about some judicial activism?

      'Should' being the key word there. Unfortunately, far too many of them have bought the 'National Security: Because Terrorists!' excuse hook, line, and sinker, and immediately give the prosecution a pass as soon as those two words are uttered.

      reply to this | link to this | view in chronology ]

  • identicon
    justme, 6 Jan 2015 @ 12:05am

    These are becoming common. .

    The use of stingrays is becoming more common and they are already being used to listen to content without a warrant.

    I am fairly certain my cell phone was intercepted at least once, indicated by the phone vibrating(meaning other party answered) and call timer started almost immediately after dialing, yet it was still ringing and when the person i called did answer there was no vibration to indicate it and call timer was already 15 second into the call.

    Am i reading that right or should i replace my tinfoil hat?

    I can only assume it was someone playing with a new toy!

    reply to this | link to this | view in chronology ]

  • identicon
    David, 6 Jan 2015 @ 12:53am

    Here's my bet

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

    Well, judging from past performance, the DOJ will narrow this down to about three questions.

    It will then create three superficially similar questions it will then proceed to answer these self-created questions in a manner where only one of the three answers is technically a straightforward lie and will be chalked off to a misunderstanding of their own question.

    That's of course for the public charade. The lies and evasions in classified meetings will be quite different, with some lies more specific that would be easier to uncover by public research than by "trust us, dear senators, we're the good guys" officials. Because of the classification, however, the discrepancies can't be brought to light.

    In short, I expect bullshit as usual. And until Holder and the whole corrupt top administration of the Department of Justice are serving time for their perversion of the U.S. justice system, there will be continuity in the DOJ and it will continue being the largest organized crime syndicate in the U.S.A.

    reply to this | link to this | view in chronology ]

  • identicon
    billyg, 6 Jan 2015 @ 2:26am

    But isn't the rule

    "If you're doing nothing wrong you have nothing to hide"?

    reply to this | link to this | view in chronology ]

    • identicon
      David, 6 Jan 2015 @ 3:22am

      Re: But isn't the rule

      Sure it is. But since law enforcement is doing those wrongs for your own good, they are hiding it for your own good.

      Because who do you trust to treat you right: some old constitution-writing geezers rotting in their graves without a clue of modern life, or the officers next door?

      To quote the last president G. W. Bush: "Our enemies are resourceful and innovative, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we."

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 6 Jan 2015 @ 9:40am

        Re: Re: But isn't the rule

        Or, to put a finer point on it: every secret the government keeps does direct and tangible harm to our nation. In some cases, that is preferable to a greater harm that can result from not keeping a secret -- but that is rare. Secrecy is something that needs to be done very sparingly and when it's done the rest of us should always view it as the act of aggression that it is.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2015 @ 6:35am

    The FBI Also claims that they don't need warrants in public places to gather up all your information:

    http://arstechnica.com/tech-policy/2015/01/fbi-says-search-warrants-not-needed-to-use-st ringrays-in-public-places/

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2015 @ 9:30am

    The rights of lab rats

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2015 @ 10:37am

    Questions they should've asked, but didn't

    What is the FBI's policy on agents using a cell-site simulator without filing a report that would be reviewed while answering these questions? What safeguards does the FBI employ to discourage or prevent inappropriate, arbitrary, capricious, or unlawful use of the simulator by agents? If agents are required to file such reports, what disciplinary proceedings would be applied for an agent who failed to file such a report? Are missing reports presumed to be negligent, presumed to be intentional, or evaluated on a case-by-case basis?

    What type of access controls does the FBI employ to ensure that simulators are only accessible to properly trained agents and only for approved purposes? How readily could an agent or group of agents temporarily or permanently procure unapproved and undetected access to a simulator? In general, are simulators stored in secured areas with limited access, similar to the storage of restricted weapons and seized evidence or are they stored in areas accessible to all agents?

    What protections exist to safeguard the privacy interests of investigatory targets, when the collected information exceeds information required for legitimate law enforcement purposes?

    What is the FBI's policy on information submitted when seeking judicial approval for use of a cell-site simulator? Would a reasonable judge, not versed in the particular details of the requested technology, understand from the application and its supporting materials the extent of the search being requested, particularly with respect to its impact on innocent bystanders? Are judges typically informed of the area covered, duration used, and negative impacts on innocent users? When judges are informed of these parameters, are those parameters incorporated into the approval in a way that encourages or requires agents to abide by them?

    What is the FBI's policy on information submitted to the court when the collected information is used in a criminal case? Would a reasonable judge and reasonable defense lawyer, neither being versed in the particular details of the technology, understand the use sufficiently to form a meaningful opinion on whether the defendant's Constitutional rights were respected?

    In cases where the FBI determines that information was not collected in strict accordance with Constitutional requirements, how does the FBI handle that information with respect to criminal proceedings? Is it disclosed to the defense and then suppressed voluntarily, disclosed to the defense so that the defense can move to suppress, or some other procedure? If some other procedure, please specify.

    When legal approval was sought and granted, how many times did agents exceed the parameters described in the approval request? How many of those times were "good faith" mistakes such as accidentally exceeding the parameter by a margin of a few percent? How many times did the agents exceed the parameters in a material manner, such as using the device for hours or days outside the approved period or operating in an area the judge would not reasonably expect?

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 6 Jan 2015 @ 4:21pm

    Police States Grow Until They Collapse From Within

    I bet:

    We are sorry but divulging that information would detrimentally affect both on-going and future investigations.

    reply to this | link to this | view in chronology ]


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