Feds say 'Stingray' use is 'very common practice'

Since Grits had written about Stingray technology following the Yale Law School's conference on Location Tracking and Biometrics, I thought I should point out this item from the Washington Times ("Can you hear me now? Feds admit FBI warrantless cellphone tracking 'very common'," which opened:

FBI investigators for at least five years have routinely used a sophisticated cellphone tracking tool that can pinpoint callers’ locations and listen to their conversations — all without getting a warrant for it, a federal court was told this week.

The use of the “Stingray,” as the tool is called, “is a very common practice” by federal investigators, Justice Department attorneys told the U.S. District Court for Arizona Thursday, according to the American Civil Liberties Union.

Installed in an unmarked van, Stingray mimics a cellphone tower, so it can pinpoint the precise location of any mobile device in range and intercept conversations and data, said Linda Lye, staff attorney at the ACLU of Northern California in a blog post about the case.

In a rare public discussion of federal electronic surveillance capabilities and authorities, Justice Department lawyers told the court hearing that, instead of a warrant, the FBI operates Stingray and other cellphone-mimicking technology under the authority of “pen register” orders. These court orders, also known as “tap and trace” orders, are generally issued to allow investigators to collect only so-called “metadata” — like all phone numbers calling to or called from a particular number.

But Stingray collects much more than just phone numbers and also “sweep[s] up the data of innocent people who happen to be nearby,” according to the ACLU filing.

Given the broad nature of the information Stingray collects and its ability to eavesdrop on conversations, many federal judges insisted that they should be told when its use was envisaged under a tap and trace order, the ACLU filing says.

Here's the blog post from ACLU on the topic titled "DOJ emails show feds were less than 'explicit' with judges on cell phone tracking tool."  That exact same lamentation was expressed by federal Magistrate Judge Brian Owsley (Texas Southern District - Houston) at the Yale conference, who said, to an untrained eye, orders for Stingrays look just like those for much-less invasive pen registers. He thought he'd only ever seen two Stingray requests, but in retrospect said he's not completely sure for exactly the reasons described above: They're frequently presented as workaday trap and trace orders. A judge can't oversee activities about which s/he is never told. In Judge Owsley's cases, the federal prosecutors themselves did not understand the technology for which they were requesting an order.

Fort Worth PD owns a Stingray device but little is known about what other state or local agencies in Texas have them. Mostly local agencies purchase them with DOJ or DHS grants. To me it seems like wiretap equipment that they shouldn't possess, at least unless the unnecessary and ill-considered SB 188 passes. That bill, which gives wiretapping authority to the state's largest municipal police departments without DPS as their intermediary, cleared the senate last week. Detectives I've spoken to from the largest departments expect a sharp increase in the number of wiretap warrants requested statewide if SB 188 passes. At that point, you can be sure they'll all want a Stingray device.

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