Did FBI Use Katrina as an Excuse for DIY Location Collection?

fisa-prtt-bar-graphLast week, Muckrock’s Shawn Musgrave wrote a piece showing that, in the wake of Katrina and a slew of other 2005 hurricanes, in 2006 FBI’s Wireless Intercept and Tracking Team said they needed more equipment from Harris Corporation, the maker of Stingrays. They justified it because the hurricanes degraded the capabilities of something, which remains redacted. But as Musgrave notes, the storms took out a lot of the telecom infrastructure, which may be what the redacted passages describe.

“In the summer of 2005, the U.S. Gulf Coast bore the brunt of several hurricanes, including Hurricane Katrina which severely degraded the capabilities of the [redacted],” the memo reads in part. Subsequent, heavily redacted sentences suggest that the storm crippled the FBI’s capacity to conduct certain types of cell phone tracking operations via equipment on-hand at the time of landfall.

[snip]

Hurricane Katrina incapacitated wide swaths of telecommunications infrastructure along the Gulf Coast, including thousands of cell phone towers. Power outages also meant many people were unable to recharge their mobile devices. It’s thus unclear which Harris Corporation product the FBI’s cell phone tracking team identified as a critical solution.

In other words, it appears that almost a year after Katrina, the FBI used the 2005 damage to telecom infrastructure as justification for getting an urgent purchase of Harris equipment, possibly Stingrays, approved.

I find the timing curious. After all, Congress approved a slew of funding right after Katrina. And Congress was debating budgetary issues in October 2005. While there’s nothing that ties this request to a budget request, it just seems odd that FBI would have identified a need in September 2005, and then sat on that urgent request until the following July. Though that July request specifically mentioning Katrina seems to be the same request that got filed in March and was in process in April that did not mention Katrina in unredacted sections. That’s not as distant from the hurricanes that purportedly identified the need, but still an odd delay for something urgent.

There’s something else that was happening in 2005 and 2006, though, that may have been as central in creating a need for Stingrays as damage to telecom equipment caused by hurricanes.

On October 14, 2005, a magistrate judge in Texas refused a request to yoke a Pen Register order onto a subscriber record subpoena to obtain location data from a telecom. Then some other magistrates started joining in. This created two problems. First, how would FBI get that location information in criminal cases. But also, in December 2005, Congress moved towards limiting the use of Section 215 orders to things that may be obtained with a subpoena, a move that would become official with the renewal of the PATRIOT Act on March 9, 2006. So even while magistrates were hashing out how the FBI might obtain such information from telecoms in garden variety criminal cases (a debate that is currently before SCOTUS), FISC and the government appear to have been having the same debate behind closed doors. In February 2006, FISC required briefing on what appears to be a parallel use of PRTT combined with a subpoena — a FISA PRTT yoked to a Section 215 order. And while the exact timing isn’t clear, we know those combined orders ended in 2006.

In other words, hurricanes may have damaged telecom infrastructure leading FBI to rely more on Stingrays. But at the same time, the legal landscape for location requests was changing, perhaps even more dramatically on the FISA side than on the criminal side.

And we know — yesterday’s change in policy admitted to FISA uses for Stingrays, though we knew this already — that FBI does use Stingrays to obtain location data under FISA as well as under criminal cases.

Katrina may have created part of the need for FBI to do more Do It Yourself location tracking, bypassing the telecoms. But legal issues created a need too, and I’d be willing to bet that the big urgency to expand FBI’s DIY location tracking abilities in 2006 had quite a bit to do with the need to find another way of location tracking, preferably one with a lot fewer people reviewing the paperwork involved.

If I’m right, then it would suggest some interesting things about the fluctuations in PRTTs (I stole the table above from EPIC). That is, in 2006, there were significant drops in PRTTs, followed by a huge drop in 2008.

On the criminal side, FBI still gets PRTT orders when it uses a Stingray. I assume the same is true on the FISA side (though it would be a lot harder to enforce here, especially because no defendant would ever get notice). But we also know the government has been hiding bulk collection under single orders, so it wouldn’t take too many orders to incorporate a lot of people.

Did FBI stock up on Harris equipment because of the weather, or because of the law?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

10 replies
  1. wallace says:

    quote”Did FBI stock up on Harris equipment because of the weather, or because of the law?”unquote

    ummm, notwithstanding deferring to Rayne in your previous post, I’d also defer to Hillary.. “what difference does it make now”. I mean..uh..really.

  2. orionATL says:

    its the iron law of highest-level washington bureaucrats:

    always use ANY crisis as an excuse to get money for your agency or program.

    congress will be shoveling money out the door, as congress ALWAYS does when there is a crisis (it is the c’s bona fide to the voters). grab all the money, territory, and legal authorization you can while the gettig is good.

    this is what fbi big bureaucrat james comey has been doing with the computer security crisis and what he has done with previous crises.

    • orionATL says:

      i think i made the point, but just in case –
      .
      this applies to all high-level washington bureaucrats – all departments, all secretariats, all agencies.

      it’s the thinking bureaucrat’s equivalent of smash-and-grab-and-run.

      • bloopie2 says:

        Of course, no one in business, or in personal life, would ever take advantage of a crisis situation to enhance or glorify himself personally, now would he? It’s human nature, I believe. Being in the bureaucracy definitely provides a platform for same, as you note. It’s the one bright spot in an otherwise shitty day. Can you imagine working there and not having such opportunities? Got to be mind-numbing. And if you, the outside observer, are really smart and you think hard about it, you will not come up with any way out for them — no way that it can be changed. It’s there forever. As the saying goes, “Life sucks, then you die.”

  3. Denis says:

    I was in Biloxi the day after Katrina – couldn’t get to NO as I-10 was closed and gas was tight anyway. Biloxi took the hurricane head-on and was an incredible mess – most building damage restricted to a strip about a mile wide along the coast. At least some radio stations were transmitting and some people I met in their homes or worked with on clean up/search had cell service from the get-go. They charged their phones by car. So some towers were operational in the area.
    .
    And the reason I say it is b/c I don’t understand how Stingrays would be a lot of help in this situation. If the towers are not down, then Stringray wouldn’t be needed at all. But if the towers were down, I don’t think Stingrays alone could make a necessary connection to the land-line branch of the system
    .
    I mean, as I understand it, Stingrays step in and scoop up wireless cellular traffic directed toward a specific tower, take the metadata and/or content they need, and then pass the wireless signal along to the tower so it looks like nothing happened. The tower is the connection to the land-line that carries the comm to the destination phone or to a distant tower if the destination phone is a cell.
    .
    So if a tower is down, or a whole area of towers down, I don’t see how a Stingray would be able to pass comm to the land-line branch of the system. You’d need that physical connection. Maybe for calls placed to another cell phone within the range of the Stingray there could be utility if the Stingray can do the switching b/c a land-line link wouldn’t be involved.
    .
    So I guess what I’m suggesting is that either I don’t understand enough about the Stingray technology or else this may be another reason that a request for more Stingrays ostensibly to solve the problem of downed towers doesn’t make sense. Does Harris and/or the spooks have technology that allows them to scoop up wireless comm and then pass that comm along to the land-line branch of the system without going through a tower? If not, the pretense of Katrina for requesting Stingrays seems especially weak.

    • emptywheel says:

      Cell phones ping towers all the time. That’s what Stingrays are generally tracking when they’re IDing location — not calls.

      And on timing, yes, I think Shawn had IDed this some time ago and posted to coincide with the anniversary. I meant to post this as soon as I read his, but hadn’t gotten around to it before the Stingray news of the last few days.

  4. Denis says:

    It’s a doubly-timely post.
    .
    First b/c of the Katrina anniversary and second b/c of a motion filed in Baltimore yesterday to overturn a conviction due to Stingray hanky-panky. Could lead to 2000 or more convictions being challenged. Baltimore, the home of scum-bag cops the world loves to hate. Color me shocked, eh.
    .
    The Guardian article of Sep04 by Nicky Woolf has the first photo of a Stingray I’ve seen. Looks harmless enough . . . a few co-ax ports, a couple of USB ports, on/off switch. How much harm to the Constitution could it possibly do??
    .
    http://www.theguardian.com/us-news/2015/sep/04/baltimore-cases-overturned-police-secret-stingray-surveillance
    .
    The non-disclosure requirement demanded by the FBI sounds very much like a federal government mandate to local cops to w/hold evidence. This is going to get interesting.

  5. orionATL says:

    if there are ever any serious limitations set on local and federal police surveillance it won’t come out of anger at the nsa. i’d guess it will only come about because local people got upset over the abuse of license plate readers, cell phone simiulators (sting rays), and the mayoral/gubernatorial kill switch. the latter may be the dumbest idea ever to come out of this era of excessive police surveillance exuberance – cut off humans’ means of communicating in an emergency. now that’s insensitivity, hubris, and political stupidity to the third power.

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