Stingrays and Public Safety Operations

In my piece on the loopholes in the new Stingray policy, I noted that public safety applications for Stingray use might fall under what the policy calls the “exceptional circumstances” that aren’t exigent but nevertheless don’t require a warrant.

I’m not sure whether the exigent/emergency use incorporates the public safety applications mentioned in the non-disclosure agreements localities sign with the FBI, or if that’s included in this oblique passage.

There may also be other circumstances in which, although exigent circumstances do not exist, the law does not require a search warrant and circumstances make obtaining a search warrant impracticable. In such cases, which we expect to be very limited, agents must first obtain approval from executive-level personnel at the agency’s headquarters and the relevant U.S. Attorney, and then from a Criminal Division DAAG. The Criminal Division shall keep track of the number of times the use of a cell-site simulator is approved under this subsection, as well as the circumstances underlying each such use.

In short, many, if not most, known uses are included in exceptions to the new policy.

We know there are public safety applications, because they are permitted even to localities by FBI’s Non-Disclosure Agreements.

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I suspect these uses are for public events to both track the presence of known targets and to collect who was present in case of any terrorist event or other serious disruption. Indeed, for a lot of reasons — notably the odd testimony of FBI’s telecom forensics witness, the way FBI’s witnesses were bracketed off from investigators, and some oddness about when and how they found the brothers’ phones (and therefore the brothers) — I suspect someone was running Stingrays at the Boston Marathon. A Stingray (or many) deployed at public events to help protect them (assuming, of course, the terrorists that attack such an event aren’t narcs for the DEA, as people have speculated Tamerlan Tsarnaev was).

Newsweek asked DOJ whether that exceptional circumstances paragraph covered the use of Stingrays in public places included in a policy released by the FBI in December and they confirmed it is (here’s my post on the December release, which anticipates all the loopholes in the policy I IDed the other day).

In December 2014, the FBI, which falls under Justice Department’s new policy, explained to members of Congress the situations in which it does not need a warrant to deploy the technology. They include: “(1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.”

Newsweek reached out to the Justice Department to determine whether its new policy allows the FBI to continue using stingrays without warrants in public places. In short, it does, fitting within the policy’s “exceptional circumstances” category.

“If somebody is in a public park, that is a public space,” Patrick Rodenbush, a Justice Department spokesman, says as an example, adding the condition that “circumstances on the ground make obtaining a warrant impracticable,” though he did not elaborate on what “impracticable” entails. But the dragnet nature of stingray collection means cellphone data of a person sitting in a nearby house may be picked up as well. “That’s why we have the deletion policy that we do,” Rodenbush responds. “In some cases it’s everyday that [bystander information] is deleted, it depends what they are using it for.… In some cases it is a maximum of 30 days.”

He adds: “The circumstances under which this exception will be granted will be very limited. Agents operating under this exception are still required to obtain a court order pursuant to the Pen Register Statute, and comply with the policy’s requirements to obtain senior-level department approval.”

Equally important as admitting that DOJ will use this in public places (like big sporting events) is Rodenbush’s confirmation that DOJ will obtain only Pen Registers for these uses.

That means they’ll virtually never get noticed to defendants, because the government will claim the evidence did not get introduced in court (just as no evidence collected from a Stingray was introduced, if they were used, in Dzhokhar’s case; in Dzhokhar’s case there was always another GPS device that showed his location).

The more I review this new policy and the December one the more I’m convinced they change almost nothing except the notice to the judge and the minimization (both still important improvements), except insofar as they recreate ignorance of Stingray use precisely in cases like public safety operations.

 

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.

2 replies
  1. wallace says:

    quote”A Stingray (or many) deployed at public events to help protect them (assuming, of course, the terrorists that attack such an event aren’t narcs for the DEA, as people have speculated Tamerlan Tsarnaev was).”unquote

    DEA? Terrorists? What possible motive would the DEA have to plant and set off explosives at public events?? Never heard this before. Of course, in this day and age…NOTHING is too outrageous to be believed, at least concerning the USG’s involvement in terrorism.

    Meanwhile, at least some States are finally coming around to the theory there is some kind of Constitutional protection from General Warrants…

    http://blog.tenthamendmentcenter.com/2015/07/two-california-bills-taking-on-spying-by-stingrays-pass-out-of-committee-2/

    http://blog.tenthamendmentcenter.com/2015/07/new-hampshire-bill-banning-warrantless-location-tracking-signed-into-law/

    Whudda thunk the Constitution has to be continuously re-written in some form or other, to keep the tyrants…er… agents of LE from breaking the law.

  2. Peterr says:

    The KC Star had a good piece on the local KCPDs use of Stingray a couple of days ago. It led with an episode that fits the “public safety” exception (finding a man who was having second thoughts in mid-suicide attempt), but moved into a generally good discussion of the broader issues. The story says that the KCPD told the Star that they’ve used it 92 times since purchasing the system in 2011, and they broke down each case as to justification and whether they obtained a warrant.
    .
    The story also compared KC to Baltimore . . .

    In Baltimore, a police detective admitted in court in April that his department had used a StingRay device 4,300 times but never disclosed those details to prosecutors or judges, according to the Baltimore Sun.

    This, though, was the buried lede IMHO:

    Kansas City police spent $499,184 in August 2011 on StingRay equipment and training. The money came from a federally funded Urban Areas Security Initiative program.
    .
    Since then, the department has spent about $270,00 [sic; $27,000? 270,000?] on equipment upgrades from the Florida-based manufacturer, Harris Corp.
    .
    Jim Burke, a company spokesman, declined to comment to The Star about its product or the company’s relationship with the Kansas City Police Department.
    .
    Purchase orders, invoices and payments obtained by The Star and the ACLU reveal few details.
    .
    Page after page shows only the total purchase amount and the vendor’s name. Police redacted nearly everything else, including item description, costs per unit and, often, who within the Police Department requested the purchase.
    .
    On one Kansas City police budget document, the line item refers to the devices as “minor equipment.”
    .
    The sales documents from Harris carry a lengthy warning, in all capital letters, that starts: “Disclosure of this document and the information it contains are strictly prohibited by federal law.”
    .
    Missouri law allows that information to be withheld from the public, Kansas City police said in an August letter to the ACLU.

    That’s a pretty expansive definition of “minor equipment” if it includes purchases up to half a million dollars.

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