Technology used by police to track cell phones is being reined in by the Department of Justice—with exceptions, however, that a prominent Democratic Senator has taken notice of.
The department policy was released on Thursday, outlining new precautions that law enforcement must take before deploying cell-site simulators—often known as “stingrays” or “dirtboxes.” Those include a warrant requirement based on probable cause and mandates regarding data retention.
Sen. Pat Leahy (D-Vt.), the ranking member on the Senate’s Judiciary Committee said in a statement Thursday afternoon that the new policies—which do not represent a change in law— are “finally starting to catch up with the rapid advancement of this tracking technology.”
Both Leahy and the committee’s chairman, Sen. Chuck Grassley (R-Iowa) have been prodding the department over concerns regarding cell site simulation. The devices, which were initially developed by the CIA, are mounted on planes and flown over populated areas, scooping up phone records about hundreds or thousands of individuals not suspected of any criminal activity.
Although Sen. Leahy described the new policy as a “step forward,” he noted that he has “serious questions” about warrant requirement exceptions outlined in it.
“I will press the Department to justify them,” he stated.
The guidance notes that in certain “exigent” and “exceptional” circumstances police can forego seeking a warrant.
The department described exigent circumstances as when the needs of law enforcement are “so compelling that they render a warrantless search objectively reasonable.” Those, according to the DOJ, include “the need to protect human life or avert serious injury; the prevention of the imminent destruction of evidence; the hot pursuit of a fleeing felon; or the prevention of escape by a suspect or convicted fugitive from justice.”
The other subset of exceptional circumstances, which DOJ alleges will be “very limited,” are when obtaining a search warrant is “impracticable.” The guidance provides no examples.
The policy change does require police to immediately scrub the simulator once it has located a cell phone of a targeted individual.
Until recently, police usage of the device was cloaked in secrecy.
A Freedom of Information Act request filed by the New York Civil Liberties Union in April turned up a non-disclosure agreement between the Erie County Sheriff’s office and the FBI that prevented the local department from publicly discussing the technology.
Police were even instructed by federal authorities to forego pursuing certain cases if there was risk that a judge would force prosecutors to reveal information about the surveillance tactic in an open court.
