DOJ Says Federal Agents Must Seek Warrants For Stingrays; Forbids Collection Of Communications

from the long-delayed-but-mostly-good-news dept

Federal law enforcement agencies of America: prepare to get your Stingray house in order. The DOJ has just issued its official guidance for Stingray use and it's full of stipulations that won't make the FBI, DEA or any other participant in a federal investigation very happy.

The seven-page document opens by reminding readers that Stingrays are used for Very Important Work (fugitive apprehension, recovery of kidnapped children, narcotics investigations, etc.). And certainly this is true. But they're also used to hunt down people suspected of misdemeanor theft and used regularly in other non-critical law enforcement work.

After that, it gets to the new rules for Stingray use. Casual use and concerted cover-ups are no longer allowed.

First off, the DOJ states that any IMSI catcher used by a covered agency must be set up to comply with pen register orders, i.e., no interception of communications. This includes the interception of text messages, emails or any other data that can be gathered from a nearby cellphone.

While the policies require restricting the device to information comparable to that received through pen register orders (if you don't count all the other cellphone connections harvested during the deployment of the device), law enforcement agencies won't be able to use these orders to permit deployment of IMSI catchers. Instead, they'll have to seek actual warrants.

While the Department has, in the past, appropriately obtained authorization to use a cell-site simulator by seeking an order pursuant to the Pen Register Statute, as a matter of policy, law enforcement agencies must now obtain a search warrant supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure (or the applicable state equivalent), except as provided below.
Not only will warrants be required, but the search warrant must specifically note that it is being requested for the use of IMSI catchers.
When making any application to a court, the Department's lawyers and law enforcement officers must, as always, disclose appropriately and accurately the underlying purpose and activities for which an order or authorization is sought. Law enforcement agents must consult with prosecutors in advance of using a cell-site simulator, and applications for the use of a cellsite simulator must include sufficient information to ensure that the courts are aware that the technology may be used.
There are exceptions, of course, but even the exceptions are more limited than we've come to expect. Exigent circumstances exceptions can be used to expedite the process (read: skip warrant acquisition) but the use of the device still needs to comply with the pen register statute (call info only; no communications). If this minimal paperwork still seems like it might take too long, the agency wishing to deploy needs to seek internal approval -- which means a quick run up the chain of command to the local US Attorney's office, who will then contact the DOJ on the agency's behalf. (Unless it's a non-federal investigation, in which case the chain of command stays local.)

There are also limits placed on the gathering and retention of non-targeted phone data. If a known device is targeted, all data must be deleted once located, or at least once daily. For unknown devices, all data must be deleted upon identification and all data within 30 days. In addition, any application for a Stingray warrant must include information regarding proposed minimization procedures.

Now for the bad news.

The DOJ refers to this as "guidance" and the document contains a footnote that seemingly exempts the DOJ from any form of accountability should it fail to follow its own rules.
This policy guidance is intended only to improve the internal management of the Department of Justice. It is not intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.
The other downside is that it only deals with investigations by federal DOJ components or the DOJ's involvement in state or local cases. This leaves local agencies free to continue hiding Stingray use from judges, prosecutors and defendants as well as avoid seeking warrants before deployment. Somewhat confusingly, the document contains a footnoted reference to "non-federal cases" which deals with the approval needed at local levels for exigent circumstance deployment, but nowhere else in the document does it say this applies to anything but federal agencies under the DOJ's purview.

Still, it's more good than bad and it's a giant step forward from the secrecy these devices have operated under for most of a decade, if not longer. Hopefully, the DOJ will continue to issue more guidance, hopefully aiming some of it local law enforcement agencies who have been just as guilty about hiding usage and deploying devices carelessly.


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  • identicon
    Yes, I know I'm commenting anonymously, 4 Sep 2015 @ 3:54am

    Or it may just be that the DOJ is gearing up for the election-cycle: Good promises for the plebs but nothing to pin anyone down on.

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

  • identicon
    David, 4 Sep 2015 @ 4:00am

    Zero content.

    Basically it's just "try following the law". In that respect,
    his policy guidance is intended only to improve the internal management of the Department of Justice. It is not intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.

    is quite accurate but misleading: it does not need this directive to point out that breaking the law and bullshitting judges about it is not what a government institution is supposed to be doing.

    Naturally, any legal accountability arises from existing laws rather than operating objectives. The silver lining is that the ridiculous "good faith exception" becomes less tenable to invoke when in direct contradiction to a directive.

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

  • identicon
    Another Anonymous Coward, 4 Sep 2015 @ 4:36am

    So?

    And since when have these agencies paid much attention to orders from above?

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

  • identicon
    Guardian, 4 Sep 2015 @ 4:53am

    dumbocrats are worried

    this kind a stuff starts when it might look like the retardicons might get power next election

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

  • identicon
    beech, 4 Sep 2015 @ 5:31am

    tin foil headgear

    My guess would be that they just got their claws on something more Orwellian that renders IMSI catchers obsolete. Now they can play the "not under this authority" game.

    Q:"Are you listening to phone calls"
    A:"No*" *- not with stingrays

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

  • icon
    That One Guy (profile), 4 Sep 2015 @ 5:43am

    'Guidance' = Empty PR speak, utterly worthless

    It doesn't really matter how good the rest of the document might seem at first glance, if they end it by noting that it's merely meant to 'guide' agencies in how they should act, and doesn't actually restrict them in any way shape or form.

    That's a loophole large enough to fly a blimp through, and you can be sure it's quite intentional. Make some nice sounding 'rules', but then make it so none of them are actually binding or need to be followed, giving them great PR without actually doing anything or requiring anything change.

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

  • icon
    Mason Wheeler (profile), 4 Sep 2015 @ 6:57am

    But they're also used to hunt down people suspected of misdemeanor theft...

    ...and what exactly is the problem with that? I have various possessions that are quite valuable to me, even though their worth in dollars would probably not be enough to make the act of stealing them a felony. If someone did steal one of them, though, I'd certainly want the police to use any tools at their disposal to track the guy down and get my stuff back. Wouldn't you?

    The only problem I have with law enforcement using Stingrays is when they pretend they weren't using Stingrays. It makes it look like they've got something to hide, when it really isn't something they should have any need to keep hidden.

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

    • identicon
      David, 4 Sep 2015 @ 2:21pm

      Re:

      ...and what exactly is the problem with that? I have various possessions that are quite valuable to me, even though their worth in dollars would probably not be enough to make the act of stealing them a felony. If someone did steal one of them, though, I'd certainly want the police to use any tools at their disposal to track the guy down and get my stuff back. Wouldn't you?

      Oh, most definitely. That's their job description. It is a mischaracterization to call warrantless unconstitutional snooping on everybody a "tool at their disposal", however. The Bill of Rights makes very explicit that this is a tool not at the disposal of Law Enforcement. Now obviously particularly the Fourth Amendment is a nuisance to both ruling parties and together they should manage a law-changing majority in order to throw that amendment out.

      But until they do so, routine warrantless snooping of a Stingray is not a tool at the disposal of police officers, just like shooting dead a rapist with their guns is not a tool at the disposal of police officers however much the victim might want them to.

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

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 7:15am

    It is a ver ysad state of affairs, when we have to spend this long debating that the DOJ should be required to follow legal precedent and obtain a warrant to use such a device.

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

    • identicon
      Anonymous Coward, 4 Sep 2015 @ 9:00am

      Re:

      ...It is a very sad state of affairs, when we have to spend this long debating that the DOJ should be required to follow legal precedent and obtain a warrant to use such a device...

      And it's ongoing: near the end of the post it states this is guidance only and not official procedure. Also keep in mind this applies only to USDOJ and federal agencies; state, county, and local agencies are not included in this.

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

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 7:20am

    'stipulations that won't make the FBI, DEA or any other participant in a federal investigation very happy'

    why wont they be happy? they'll just do the same as usual and ignore everything and when it gets to court have the biggest pile of horse shit imaginable as to the reasons they did whatever it was!

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

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 8:38am

    DOJ releases placating non-consequential acknowledgement of how things should be.

    Your title is seriously F'd up Tim- this whole article is kinda f'd up- important facts are supposed to be at the beginning of a story... If you only read the first half of the article, you'd have completely the wrong idea of what's going on- wtf. Are you naive and hope-drunk, or deliberately writing to fulfil some sort of propaganda requirement? I feel dirty after reading this, like you've deliberately tried to manipulate me.

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

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 8:56am

    Your earlier article- "DOJ Reasserts Its Right To Engage In Seized Data Fishing Expeditions" was perfect... How did miss the mark so badly on this?

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

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 9:56am

    They will do it anyway, because they can.

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

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 11:23am

    Is the disclaimer really that special?

    "This policy guidance is intended only to improve the internal management..."

    IANAL and don't play one on TV. Still, this sounds like exactly the sort of thing that lawyers might routinely put in this type of document as a disclaimer to avoid lawsuits, setting precedent, etc.

    Is it really unusual to see this type of footnote in a DOJ document or is this standard operating BS?

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

  • icon
    Atkray (profile), 4 Sep 2015 @ 3:43pm

    Needs rewording

    "that won't make the FBI, DEA or any other participant in a federal investigation very happy. "


    I suspect it will make all the targets(who are also participants) very happy.

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

  • identicon
    Anonymous Coward, 6 Sep 2015 @ 11:31am

    Bollocks

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


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