Federal agents may have deceived judges in using secretive ‘Stingray’ cell phone tracking technology

According to newly obtained documents, federal agents routinely used the secretive cell phone tracking technology known as “Stingray” while misleading judges about what they were actually doing.

A Department of Justice document recently obtained by the American Civil Liberties Union (ACLU) shows that federal investigators only obtained a pen register warrant when using Stingray technology, never making the fact that they’re using Stingray technology explicit.

This is especially noteworthy since the number of pen register warrants has massively increased over the past two years.

In fact, it has increased so much that more people were targeted by pen register and trap and trace devices over the past two years than in the entire previous decade combined.

The documents contain internal emails between Justice Department attorneys in the United States Attorney’s Office for the Northern District of California which “make clear that U.S. Attorneys in the Northern California were using Stingrays but not informing magistrates of what exactly they were doing. And once the judges got wind of what was actually going on, they were none too pleased,” as the EFF put it.

In the highly contentious case of Daniel Rigmaiden, the government used a Stingray device to track and arrest Rigmaiden while never telling the federal magistrate judge issuing the warrant that it was using the technology.

One of the emails indicates that this is far from an isolated incident:

As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…

Perhaps even more troubling is that according to a March 29 update by the ACLU, the government actually stated in the course of their arguments that “use of these devices is a very common practice.”

“It also stated that there were many parts of the country in which the FBI successfully obtains authorization to use this device through a trap and trace order,” according to the ACLU.

According to the ACLU it is quite difficult to actually obtain any information about the extent of the government’s use of Stingray devices as well as the type of authorization the government obtains when using the devices since the orders are usually kept secret.

“There is a significant constitutional question whether stingray devices — because they scoop up information of unrelated third parties — can ever be used consistent with the Fourth Amendment, but at a minimum, the government should clearly be seeking a warrant based on probable cause before deploying the device,” according to the ACLU.

When judges are not fully informed, they cannot decide whether surveillance using a Stingray device is appropriate.

Similarly, they cannot put any privacy safeguards in place or issue rules determining how the data of innocent people caught in the Stingray’s dragnet should be handled.

On another front, the FBI’s attempt to delay the release of records related to their use of Stingray technology by two years was denied by a federal judge in Washington, DC on March 28.

The opinion relates to an Electronic Privacy Information Center (EPIC) lawsuit filed against the FBI in an effort to obtain records under the Freedom of Information Act relating to the agency’s use of Stingray technology.

The court stated that the FBI was not actually facing the “exceptional circumstances” required to justify its attempt to delay the release of records by a whopping two years. The FBI was ordered to produce all records except those subject to classification review by August 1, 2013.

It will be interesting to see how this battle pans out given the strong opposition and the government’s tendency to cling to secrecy. When a federal judge says the Obama administration never release a legal memo explaining why it is legal to kill Americans without charge or trial while still claiming it is legal to do so, nothing will surprise me.