Privacy

by Tim Cushing


Filed Under:
4th amendment, doj, stingray, warrants



DOJ Tells Court There No Need To Establish A Warrant Requirement For Stingray Devices

from the not-now,-not-ever,-no-matter-what-our-internal-rules-say dept

The DOJ is in court arguing the use of Stingray devices by the FBI and local cops shouldn't require a warrant. The government's lawyers are fighting a suppression motion by Purvis Ellis, charged with racketeering and the attempted murder of a police officer.

The events of the case happened in 2013, two years before the DOJ instructed federal agents to seek warrants when deploying Stingrays. For this investigation, the Oakland PD used a pen register order, as was the style at the time. (And perhaps still is. Despite the DOJ's internal instructions, warrant requirements are all but nonexistent when it comes to local law enforcement agencies' use of cell tower spoofers.)

As Cyrus Farivar points out, the PD's Stingray couldn't locate Ellis, so it brought in the FBI. All without warrants and all without informing the defense about the additional Stingray deployment.

Ellis was located in an East Oakland apartment several hours after a January 2013 shooting with the help of two stingrays. Prosecutors initially insisted that only one stingray was used, but, as was revealed last summer, that turned out not to be the case. The Oakland Police Department's own stingray was seemingly insufficient, so officers then called in the FBI, both times without a warrant.

The defendant is arguing the multiple warrantless Stingray deployments violated the Fourth Amendment. Considering the devices coax a location signal out of phones by aping cell towers, this differentiates Stingrays from more passive collections -- like the pen register the government didn't actually use.

The government, quite obviously, is arguing otherwise. It points out in its opposition motion [PDF] that it has all the warrant exceptions on its side:

Four gang members ambushed a young man in broad daylight, shooting him through the forehead from close range. The next day, those same men jumped, pistol-whipped and shot a police officer investigating the prior day’s shooting. The suspects then fled, armed with their own arsenal, as well as with the guns they had just stolen from the officer. Police surrounded the apartment complex where the men were thought to be hiding. Finding them quickly was essential. By shooting two people in a 27-hour period, the suspects – including the defendant Purvis Ellis – had just demonstrated an ability and willingness to kill others. So, when officers used a cell site simulator (“CSS”) to find Ellis, they were entirely justified by the exigent circumstances presented, rightly believing him to be armed and dangerous.

The defendant’s motion to suppress is meritless. The courts have not definitively decided whether use of a CSS constitutes a “search” triggering Fourth Amendment protections. But it largely does not matter here, since exigent circumstances amply supported a warrantless use of the device.

[...]

Other exceptions to the warrant requirement also cut against suppressing evidence. For instance, the officers acted in good faith reliance on established law – the pen register statute, Supreme Court precedent, even the FBI policy at the time. Those laws and policies, combined with the dearth of binding case law on the CSS, all justified using the device without a warrant. In addition, the officers would have inevitably discovered everything they ultimately did, even had they never used the CSS. After all, they had the building surrounded by dozens of officers and SWAT team members hours before the CSS was even deployed.

It's a long list of counterarguments, most of which have some validity in this particular case. (That, of course, doesn't stop the government from using the same arguments in cases where its assertions of good faith, exigency, etc. are far more questionable. But that's how lawyering works… on both sides.)

It appears the government would rather the court didn't make a determination as to whether Stingray deployments are Fourth Amendment searches. The government lets the court know what it doesn't need to do to resolve this issue in the DOJ's favor:

Whether use of a cell site simulator constitutes a “search” for Fourth Amendment purposes is not necessarily a question this Court needs to answer, since even if it were a search, it was amply justified under the circumstances. That said, the law supports concluding that the device in this case did not affect a search.

The following argument, however, is particularly disingenuous. The defendant argued the warrant was invalid because officers didn't let the judge know they'd be deploying a Stingray device when it got its pen register order approved. The DOJ says this shouldn't matter, as it can find very little pre-2013 evidence suggesting these devices were mentioned in previous court documents.

Since the CSS technology was still relatively new in 2013, there were simply no binding cases to direct agents and officers to disregard Smith v. Maryland and get a warrant. According to the government’s research, only a few federal pre-2013 cases referenced “cell site simulator,” “digital analyzer,” “triggerfish,” or “stingray” in a relevant context. (The government found no such cases in California courts.)

Well, of course this search came up empty. For years, the FBI swore law enforcement agencies to secrecy if they acquired Stingrays, telling them to dismiss cases rather than have defendants, judges, or even some prosecutors discuss the tech in open court. The lack of DOJ search results means the NDAs the FBI forced everyone to sign worked.

By no means was CSS technology "relatively new" in 2013. Documentation of Stingray devices can be found dating back to 2006 and use of pre-Stingray "digital analyzers" dates back more than 20 years. There wasn't much courtroom discussion because the FBI actively prevented it from happening. And the DOJ knows this, as its "research" likely turned up things like this 2012 NDA on DOJ letterhead telling a New York sheriff's office to STFU about its new toy.

With no discussion, there are no binding cases. That's how the FBI wanted it. And it pays off years down the road by making it easier for the DOJ to prevail in a suppression argument without setting precedent it may find inhibiting another half-decade down the road.


Reader Comments

The First Word

So it's not interception...what is it?

A Stingray Device is a computerized radio transceiver that emits a stronger signal than a cell phone tower does, causing all the cell phones in the area to connect to the Stingray instead of the actual tower.

It has long been a truism of computer security, that any software-based security is irrelevant if you have physical access to the server. It's equally true that even hardware-based security becomes irrelevant if you can replace the normal hardware with your own.

The basis of the DoJ's claim is that use of a Stingray is not an interception of electronic communications for purposes of wiretapping laws, nor is it an unauthorized access of a computer for purposes of the Computer Fraud and Abuse Act, despite the fact that a modern smartphone is without doubt a computer. Their theories get very convoluted and circular, but that IS the basis of all of their arguments.

If they are in fact correct, then it should be noted that it would not be illegal for private citizens to operate a Stingray Device, since the law enforcement exemptions to wiretapping laws and the CFAA all turn on having a valid warrant. If there is no warrant requirement to using a Stingray, then obviously use of a Stingray does not fall into one of the law enforcement exemptions. But since those laws impose an absolute ban on interception or unauthorized access outside of the law enforcement exemption, the only other possible explanation for Stingrays not needing a warrant is that they are not interception or unauthorized access!

Somehow, I doubt that a private citizen operating a Stingray to snoop on government offices and government agents would escape criminal charges.
—Bergman

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  • identicon
    Anonymous Coward, 18 Jul 2017 @ 10:16am

    Lol they would say that, wouldn't they?

    Also what kind of backassward argument is that where "even if it constitutes a 4th amendment search, we shouldn't need a warrant anyway!"

    Huh? But the 4th amendment REQUIRES warrant for searches...

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

  • identicon
    Anonymous Coward, 18 Jul 2017 @ 10:21am

    It's wireless!

    So wiretap laws don't apply!

    -DOJ logic

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

    • icon
      Bergman (profile), 18 Jul 2017 @ 12:18pm

      Re: It's wireless!

      Made especially ironic by the fact that police routinely arrest people for 'wiretapping' them by recording conversations that don't involve any wires whatsoever.

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

  • icon
    Hugh Jasohl (profile), 18 Jul 2017 @ 10:33am

    Perect

    Lets all keep track of every DOJ employee using stingray type devices! They have no problem with their use so we clearly are misunderstanding the privacy issues.

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

  • icon
    JoeCool (profile), 18 Jul 2017 @ 10:45am

    Translation

    charged with racketeering and the attempted murder of a police officer

    For those who don't speak LEOese: He has neat stuff and we want it! And, when we arrested him he was in a car, and we afeared for our lives!

    ;)

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

  • identicon
    Anonymous Coward, 18 Jul 2017 @ 10:48am

    Secrecy

    For years, the FBI swore law enforcement agencies to secrecy if they acquired Stingrays...

    This is from the same people who like to spout off "if you've done nothing wrong, then you have nothing to hide". Sounds to me like they knew they were doing wrong.

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

  • identicon
    Anonymous Coward, 18 Jul 2017 @ 12:00pm

    another step towards the total surveillance nation!

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

  • identicon
    bob, 18 Jul 2017 @ 12:04pm

    learn in school while you can.

    If only I had learned cascading style sheets (CSS) in school. I could have joined law enforcement

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

  • identicon
    Anonymous Coward, 18 Jul 2017 @ 12:17pm

    Tim Cushing's article is nothing but an article of bullshit. When the gang had already killed two people, and took weapons from a police officer and shot that same investigating police officer, there was exigent circumstances and police did not need a warrant.

    If people were shot and/or killed, I would not care whether the police officers obtained a warrant or not. I sure as hell would not hold that against them.

    Perhaps we should switch to a system of justice where if you kill someone, you should be executed. If you shoot someone, then you should be shot, if you rape someone, then you should be raped. Let the punishment fit the crime. Remember, if you run someone over with your car, then your punishment should be run over with a car.

    Giving someone a jail sentence or prison sentence is not punishment, it's more about making people feel superior about how they are so evolved from the rest of society.

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

    • icon
      orbitalinsertion (profile), 18 Jul 2017 @ 3:16pm

      Re:

      Uh, no... First thing is, Tim Cushing isn't arguing the rest of the case. What these violent criminals did is irrelevant to the arguments they are making about stingray use which are specifically pointed out as being the more problematic ones.

      I would also point out that your irrelevant notions of justice are completely in violation of the rule of law, and reflexively illegal internally to boot. So, who do you get to rape a rapist? That is seriously messed up and makes things worse. You either get another criminal to do it under state sanction... and then what, they get raped also, and so on? Or if not, now you have some other clearly warped individual out there. Or is this done by official employees of the state? Then you have a state guarded by the most vile and psychopathic individuals available. I think we already have enough problems with these sorts of things without institutionalizing them.

      And let's not even get into completely false convictions.

      "Giving someone a jail sentence or prison sentence is not punishment, it's more about making people feel superior about how they are so evolved from the rest of society."

      Lolwut? It is partly about keeping them off the streets. (Including for crimes that really don't merit incarceration for any good reason, i will give you that.) It is also about revenge. You know, the sort of thing you like, only with a bit more of a patina of being "civilized". The system suffers from a multitude of other problems as well, but i cannot possibly see your version being an improvement.

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

    • identicon
      bob, 18 Jul 2017 @ 3:19pm

      Re:

      ...there was exigent circumstances and police did not need a warrant.

      Well the officers felt it was important enough to get a warrant and omit the fact that they really were using stingrays. Also they even had time to wait for the FBI to show up with their own equipment.

      I don't know the exact timeline of events leading up to the use of the stingray. But the government in their brief state that they didn't ultimately need to use the CSS because the building was already surrounded by swat for two hours prior. Doesn't sound like exigent circumstances.

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

  • icon
    Bergman (profile), 18 Jul 2017 @ 12:19pm

    So it's not interception...what is it?

    A Stingray Device is a computerized radio transceiver that emits a stronger signal than a cell phone tower does, causing all the cell phones in the area to connect to the Stingray instead of the actual tower.

    It has long been a truism of computer security, that any software-based security is irrelevant if you have physical access to the server. It's equally true that even hardware-based security becomes irrelevant if you can replace the normal hardware with your own.

    The basis of the DoJ's claim is that use of a Stingray is not an interception of electronic communications for purposes of wiretapping laws, nor is it an unauthorized access of a computer for purposes of the Computer Fraud and Abuse Act, despite the fact that a modern smartphone is without doubt a computer. Their theories get very convoluted and circular, but that IS the basis of all of their arguments.

    If they are in fact correct, then it should be noted that it would not be illegal for private citizens to operate a Stingray Device, since the law enforcement exemptions to wiretapping laws and the CFAA all turn on having a valid warrant. If there is no warrant requirement to using a Stingray, then obviously use of a Stingray does not fall into one of the law enforcement exemptions. But since those laws impose an absolute ban on interception or unauthorized access outside of the law enforcement exemption, the only other possible explanation for Stingrays not needing a warrant is that they are not interception or unauthorized access!

    Somehow, I doubt that a private citizen operating a Stingray to snoop on government offices and government agents would escape criminal charges.

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

  • identicon
    Anonymous Coward, 18 Jul 2017 @ 12:41pm

    Unfortunately, law enforcement will make it a felony for private citizens to own stingray devices and I doubt the companies who make them would sell one to you anyway.

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

    • identicon
      bob, 18 Jul 2017 @ 3:08pm

      Re:

      But I bet you could still get one on the black market.

      Also if it's understood to be perfectly legal for an average citizen to own and operate one, the companies will sell them too you.

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

  • identicon
    Personanongrata, 18 Jul 2017 @ 3:14pm

    Arbitrary Application of the Law is Tyranny

    DOJ Tells Court There No Need To Establish A Warrant Requirement For Stingray Devices

    Warrants are so yesterday.

    Dear citizen please remember when the US government circumvents, tramples and/or arbitrarily redefines the Constitution it is doing so in order to keep us safe from evil doers who hate us for our freedoms.

    In the United States of Tyranny all subjects must genuflect to authority upon command and never ever question any pronouncements, fiats, diktats and/or lawful oral/written commands given by any government official (most especially those commands given by petty functionaries comprising the low-self-esteem costume wearing class - your life depends upon complete submission).

    What a wonderful place to raise a family if you are willing to live life with your head buried up your arse.

    Cast off the repressive yoke of a criminal US government.

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


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