Documents Show DOJ Admitting that StingRays Spy on Innocent Bystanders

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stingray-surveillanceby Linda Lye

Documents recently obtained by the ACLU of Northern California from the Department of Justice confirm concerns about the federal government’s use of StingRays – a highly intrusive cell phone surveillance device – and underscore the need for transparency.

For years, the government has shrouded in secrecy its use of StingRays, also called “cell site simulators.” By mimicking a cell tower, cell site simulators trick nearby devices into transmitting their location and identifying information. When used to track a suspect’s cell phone, they also gather information about the phones of countless bystanders who happen to be nearby. In early September 2015, DOJ publicly announced guidelines for using the technology, a positive, though flawed, first step.

Two years ago, we filed a Freedom of Information Act lawsuit against DOJ for its policies and procedures about StingRays. The court ordered the government to produce some key documents, and the government has now finally done so. The documents we obtained include memos and “template” court applications that DOJ provides to federal prosecutors. While these documents have largely been superseded by DOJ’s new guidelines, they still shed light on important issues.

First, we’ve long been concerned that the government has not been up front with courts about the intrusive nature of these devices. A standard, internal form that DOJ provides to federal prosecutors validates that concern.

The cover memo to the form tells federal prosecutors that a cell site simulator can be used to identify the telephone number being used by a particular individual. It cautions that when the device is used for this purpose, “collection should be limited to device identifiers,” that is, the unique numeric identifiers associated with cell phones.

The internal memo then warns in unmistakable terms that other types of information, like the number someone dials, “should not” be collected, “as that would entail surveillance on the calling activity of all persons in the vicinity of the subject.” This DOJ memo thus acknowledges our longstanding concern – that StingRays spy on innocent bystanders.

But shockingly, the form that DOJ gives federal prosecutors to submit to courts fails to spell this out. To be sure, the form states that the device will be used “to detect radio signals emitted from wireless cellular telephones in the vicinity of the Subject that identify the telephones.” But this opaque language – two lines in a multi-page application – hardly provides an intelligible explanation of StingRay technology. DOJ realized it was important to educate its own prosecutors that cell site simulators can conduct “surveillance on the calling activity of all persons in the vicinity.” It should have said so in plain English to courts as well.

Second, the documents also raise questions about DOJ’s new guidelines. DOJ announced that going forward it will seek a warrant based on probable cause to use a StingRay, subject to certain exceptions. In addition to an exception for “exigent circumstances” (a well understood exception to the Fourth Amendment’s warrant requirement), the new guidelines also create a potentially expansive exception for undefined “exceptional” circumstances.

What does DOJ think might count as an “exceptional” but apparently not “exigent” circumstance? The documents from our FOIA litigation provide some insight. Those documents include procedures for “Emergency Installation” of cell site simulators. Situations that count as an “emergency” according to DOJ include “activity characteristic of organized crime” and “an ongoing attack of a protected computer (one used by a financial institution or U.S. government) where violation is a felony.” While such crimes are potentially serious, they simply do not justify bypassing the ordinary legal processes that were designed to balance the government’s need to investigate crimes with the public’s right to a government that abides by the law.

Third, DOJ decided not to appeal the court order requiring it to disclose these documents, but only after it announced its new StingRay guidelines, in other words, after the documents became in large part moot. DOJ could have avoided disclosure for years more, simply by appealing. The public should not have to spend years litigating FOIA cases just to obtain basic information about what the government is up to.

Instead, local communities should demand that their elected leaders follow a consistent and open process whenever considering new surveillance technology and adopt use policies that provide for transparency, oversight, and accountability.

Linda Lye is a senior staff attorney at the ACLU of Northern California.

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12 thoughts on “Documents Show DOJ Admitting that StingRays Spy on Innocent Bystanders”

  1. Barack Palin

    No surprise, under the the current administration the DOJ has lost all respect and is now nothing more than a biased political appendix of Obama.  Instead of acting like the number one law enforcement agency of America they have become hatchet men for Obama.

    1. Matt Williams

      BP, you could have just as easily said …

      Under the the prior administration the DOJ lost all respect and was nothing more than a biased political appendix of Bush/Chaney. Instead of acting like the number one law enforcement agency of America they have become hatchet men for Chaney/Bush.

  2. Tia Will

    To be sure, the form states that the device will be used “to detect radio signals emitted from wireless cellular telephones in the vicinity of the Subject that identify the telephones.” But this opaque language “

    I am wondering what the ACLU attorneys consider “opaque” about language that clearly states that other phones in the vicinity may have data collected and thus stored. If we have judges in our legal system that are unable to arrive at the conclusion that this means that not all data collected in this manner may be related to the case in hand, or indeed to any case at all, then I would question their ability to judge.

  3. Anon

    We have had so many foulups in the DOJ and elsewhere in the federal gov’t under the Obama administration, because he doesn’t seem to understand the boundaries of the executive branch or know what stupidity his underlings are perpetrating.

    Editing intelligence reports to make it appear the US war on ISIS has been a success rather than an abysmal failure: http://www.cbsnews.com/news/report-analysts-say-leadership-altered-isis-intelligence-assessments/

    Operation Fast and Furious: 
    http://www.cnn.com/2013/08/27/world/americas/operation-fast-and-furious-fast-facts/

    I don’t agree with all the points made in the following, but it does make for interesting reading: https://danfromsquirrelhill.wordpress.com/2013/08/15/obama-252/

    1. Tia Will

      Anon

      he doesn’t seem to understand the boundaries of the executive branch or know what stupidity his underlings are perpetrating.”

      Kind of how the stupidity of Bush’s purported “underlings” got us into the mess of Iraq ?

      1. Anon

        Why bring Bush into this discussion – he is not our current president?  Are you trying to tell me that what Obama and his underlings did was right?  For instance, selling guns to Mexican cartels?  Intimidating CIA analysts to change their reports more to his liking?

        1. Matt Williams

          My reading of Tia’s comment was that she was illustrating that the problem within DOJ is time independent. Same problems (different specifics) existed in prior administrations. I made the same point in a response to Barack Palin last week.

        2. Anon

          To Matt: I read her comment as deflecting attention away from the real issues. And I believe both issues I cited were on Obama’s watch only. Operation Fast and Furious from 2009-2011. The CIA analysts problem just happened.

          1. Matt Williams

            As I said in my prior reply to Barack Palin, while the details of the transgressions may differ from administration to administration, the fact is that the same type of transgressions exist in all administrations. Power has a way of ignoring political party designations.

  4. Frankly

    In addition to this and many other things, don’t forget Solyndra, the Health and Human Services Obamacare website debacle, the IRS, NSA, Benghazi, the Office of Personnel Management, VA, all the terrorist attacks and killing on American soil… the list goes on and on and on.  Any Republican president would have been toast in the media for just one of these things.  Obama gets a pass… wanna guess why?

  5. Napoleon Pig IV

    I see no fundamental difference between Republican and Democratic administrations in the extent to which they monger power and are willing to intrude into the private lives of citizens.

    For both political parties, the wise words of The Who, “Meet the new boss – Same as the old boss,” remain true.

    As for their repeated lyrics “Then I’ll get on my knees and pray – We don’t get fooled again. . . ” Well, I’m afraid it will take more than prayer to turn this problem around.

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