Justice Department curtails secretive cellphone surveillance

WASHINGTON — In a bid to fend off growing criticism, the Department of Justice has announced new guidelines to restrict the use by federal law enforcement and security agencies of cell-site simulators that secretly track mobile phones.

In a policy directive released late Thursday, DOJ said the change “will enhance transparency and accountability, improve training and supervision, establish a higher and more consistent legal standard and increase privacy protections.”

DOJ says that “law enforcement agencies must now obtain a search warrant supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure” in order to use the devices, which are sold under the brand names of Stingray, Kingfish and others.

“The simulators are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information,” the American Civil Liberties Union says on its website.

The ACLU adds, “When used to track a suspect’s cell phone, they also gather information about the phones of countless bystanders who happen to be nearby.”

DOJ describes cell-site simulators, or International Mobile Subscriber Identity (IMSI) catchers, slightly differently.

It’s a cell tower that cellular devices in the proximity find “as the most attractive cell tower in the area and thus transmit signals to the simulator that identify the device in the same way that they would with a networked tower,” DOJ said in its policy brief.

Privacy advocates have complained that cellphone users are unaware their communications have been diverted to the device.

The Justice Department’s change comes after a growing chorus of complaints about the widespread and seemingly unrestricted use of the cell-site.

Nathan Freed Wessler, staff attorney for the ACLU’s Speech, Privacy, and Technology Project, applauded the move, saying in a statement, “After decades of secrecy in which the government hid this surveillance technology from courts, defense lawyers, and the American public, we are happy to see that the Justice Department is now willing to openly discuss its policies. Requiring the FBI, DEA, and other agencies to obtain a warrant before deploying these surveillance technologies — in most circumstances — is a positive first step.”

The ACLU said on its website it has identified 53 agencies in 21 states and the District of Columbia that own Stingrays.

Despite the progress, Wessler said, “this policy does not adequately address all concerns. Disturbingly, the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices.”

He adds, “the guidance leaves the door open to warrantless use of Stingrays in undefined ‘exceptional circumstances’,” while permitting retention of innocent bystander data for up to 30 days in certain cases.

While the Justice Department policy will restrict federal law enforcement use of the technology, there appears to be no restriction on the use of such devices by private citizens, companies and even foreign governments.

J.J. Green

JJ Green is WTOP's National Security Correspondent. He reports daily on security, intelligence, foreign policy, terrorism and cyber developments, and provides regular on-air and online analysis. He is also the host of two podcasts: Target USA and Colors: A Dialogue on Race in America.

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