Illinois Magistrate Judge Lays Down Ground Rules For Stingray Device Warrants

from the law-enforcement-agencies:-'Is-there-someone-else-we-could-talk-to?' dept

It looks like a few law enforcement agencies might be doing some judge-shopping in the future. Magistrate judge Iain D. Johnston has announced -- via an order in a (mostly) sealed drug investigation case -- that agencies will no longer be able to come to him to get their Stingray-related orders rubber stamped.

His order points out that there's still hardly any information in the public domain about Harris Corporation's cell-site simulators, and even less so in terms of legal precedent.

[T]he manufacturer of cell-site simulators (a company called the Harris Corporation) is extremely protective about information regarding its device. In fact, Harris is so protective that it has been widely reported that prosecutors are negotiating plea deals far below what they could obtain so as to not disclose cell-site simulator information.

[...]

So where is one, including a federal judge, able to learn about cell-site simulators? A judge can ask a requesting Assistant United States Attorney or a federal agent, but they are tight lipped about the device, too; in all likelihood because of the NDAs…

The Court could attempt to learn about the device on the Internet. See Stingray Phone Tracker, http://en.wikipedia.org/wiki/Stingray_phone_tracker (last visited October 19, 2015). But most reasonable people know to be highly skeptical about what they read on the Internet, particularly in Wikipedia posts… [These] articles often rely on secondary source material, including the possibly untrustworthy Internet websites.

Unfortunately, the one place where a person will be unable to find much discussion of cell-site simulators is case law. In the Matter of the Application of the United States of America for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, 890 F. Supp. 2d 747, 752 (S.D. Tex. 2012) (“Regardless of what it is called, there is scant case law addressing the equipment.”). And even case law that discusses stingrays refers to newspaper reports as authority on these devices.
Judge Johnston recommends magistrates at least read the DOJ's own guidelines for electronic surveillance. Unfortunately, this document is a decade old and portions of it have been overwritten by the DOJ's recent guidance on the use of Stingray devices. But it's better than nothing. And "nothing" has been the goal of both law enforcement and law enforcement agencies over the past several years -- something that has been achieved in large part thanks to the FBI putting its own NDA between Stingray-related information and courts, defendants and, in some cases, prosecutors.

Using what little information he's been able to gather, Johnston has produced a set of ground rules for Stingray warrant applications. There are Constitutional issues raised by the use of Stingray devices, which collect device information (including location) even when the phone part of the phone isn't in active use.

As Johnston points out, agencies using these devices routinely collect and store information on thousands of non-suspects, thanks to the catch-it-all nature of cell-site simulators. Like anything else Stingray-related, these agencies show little interest in discussing how this non-hit information is handled. Because of this, Johnston says the following guidelines will need to be followed if law enforcement agencies want him to sign off on cell-site simulator warrants.
When a cell-site simulator is used, the Court will impose three requirements: the first relates to the manner in which the device is used; the second relates to the destruction of innocent third parties’ data; and the third explicitly prohibits the use of innocent third parties’ data.
When using these devices, law enforcement agencies must make every reasonable effort to limit the amount of information gathered from innocent third parties. As an example, Johnston says pursuing a suspect may find police parked in front of a full stadium. If this is the case, the Stingray device should not be deployed as the ratio of non-hit data would be astronomical. As he points out, any reasonable law enforcement agency would prefer not to dig through tons of irrelevant data to find the devices they're actually looking for.

This leads directly to the second requirement: the destruction of innocent third party data. Johnston won't allow agencies to sit on data for the 90 days or six months they're accustomed to (see also: the very few guidelines issued for the use of automatic license plate readers by law enforcement).
[L]aw enforcement officers must immediately destroy all data other than the data identifying the cell phone used by the target. The destruction must occur within forty-eight hours after the data is captured. The forty-eight hour time frame is designed to have some consistency with other Fourth Amendment principles…
And it's not enough for agencies simply to claim they will destroy non-relevant data within 48 hours. They also must deliver to the court confirmation that the destruction of non-hit data has been completed.

Finally, Johnston's rules forbid the use of non-hit data for any other reason, heading off potential Stingray fishing expeditions by law enforcement agencies.
[L]aw enforcement officers are prohibited from using any data acquired beyond that necessary to determine the cell phone information of the target. A cellsite simulator is simply too powerful of a device to be used and the information captured by it too vast to allow its use without specific authorization from a fully informed court.
The order notes that this applies to any federal agency working with local law enforcement. The FBI, DEA and US Marshals all must comply with Johnston's stipulations, so any local agency looking to work around the new rules can't send in a federal rep with a warrant request, or vice versa.

If Johnston's court becomes a place law enforcement agencies avoid, their actions will make it clear they have little respect for the Fourth Amendment and would rather use power surveillance tools indiscriminately and without additional oversight.

Filed Under: 4th amendment, iain johnston, imsi catcher, stingray, warrants


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  • identicon
    Mark Wing, 17 Nov 2015 @ 3:46pm

    Seems like maybe the new found political awareness of the tech industry could finally start to pay dividends. It could be politically risky for judges to just be rubber stamps with so much attention on these types of issues. To sites like Techdirt and Popehat I say: Bravo, and good day to you, sirs.

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

  • identicon
    Jordan, 17 Nov 2015 @ 3:55pm

    Hmmm

    I'd love to read a LEO's justification for all this BS...just say they have " little respect for the Fourth Amendment" as opposed to lying. They probably hate the 1st amendment too. Seems like LEO does everything it can in AMerica to "win" regardless of the law.

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

    • identicon
      Anonymous Coward, 18 Nov 2015 @ 1:07am

      Re: Hmmm

      remember they are low IQ pigs:
      if you ask them for complicated justification
      they will cry and go straight to the next Donut shop

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

  • identicon
    Quiet Lurcker, 17 Nov 2015 @ 4:39pm

    Looks like one judge found a good way to cut down on his work load.

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

    • identicon
      psiuuuu, 18 Nov 2015 @ 7:47am

      Response to: Quiet Lurcker on Nov 17th, 2015 @ 4:39pm

      Ha, double win!

      "Hmmm...follow the law, Constitution, AND cut down on those late night bullshit 'pen register' applications. Yessss."

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

  • identicon
    Justme, 17 Nov 2015 @ 5:36pm

    Someone needs to set limits. . .

    These guidelines are reasonable and we should all commend him for trying to bring stingray use into line with the laws of the land.

    It's something Congress should have addressed before the department of justice ever started funding them for local law enforcement. But, i guess that would require them to think beyond who is writing them a check today!

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

  • identicon
    Jason, 17 Nov 2015 @ 6:52pm

    If only...

    Clearly defined guidelines, made public, with specific and enforceable limitations to prevent misuse and uphold the Constitutionally protected rights of the people?

    If only this approach (otherwise known as "following the Constitution") had been taken from the very start, how much of the public backlash against the overreach of law enforcement and the intelligence agencies (which suddenly seem to worry them so much) could have been completely avoided?

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

  • identicon
    Anonymous Coward, 17 Nov 2015 @ 7:31pm

    BRAVO JUDGE!

    I say to you, Judge, BRAVO!

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

  • identicon
    Anonymous Coward, 17 Nov 2015 @ 7:52pm

    If Johnston's court becomes a place law enforcement agencies avoid, their actions will make it clear they have little respect for the Fourth Amendment and would rather use power surveillance tools indiscriminately and without additional oversight.


    There was some question about whether this had already been answered?

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

  • icon
    DB (profile), 17 Nov 2015 @ 7:56pm

    A bit of background.

    Harris isn't an upstart company. I worked for them three decades ago, and they were a large, long-established conservative government contractor back then.

    They developed the earliest spread-spectrum and frequency hopping radio systems. They were selling amazing digital communication systems to the military and NASA long before digital cell phones were a consumer product.

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

  • identicon
    Anonymous Coward, 18 Nov 2015 @ 1:10am

    what?
    no nailgun?

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

  • icon
    DannyB (profile), 18 Nov 2015 @ 5:33am

    This is a horrible precedent

    Police might have to do actual police work instead of listening in on everyone's phone calls.

    Think of the poor doughnut vendors!

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


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