Justice Department to Require Warrants for Cellphone Tracking—With a Big (Unwritten) Loophole

The Justice Department came out with a new policy on Thursday that will require its law enforcement agencies to obtain warrants to use cellphone tracking technology in criminal investigations. While civil liberties advocates praise the new rules as an acknowledgement of privacy concerns and a positive first step, they also take issue with what appear to be some substantial loopholes.

These cellphone tracking devices, often referred to as stingrays, mimic cellphone towers in connecting to phones and sucking up data. The devices help investigators locate suspects, but in the process they also gather data from innocent bystanders nearby. Stingrays have come under fire in recent years as reports shed light on their pervasive and secretive use by both local and federal law enforcement agencies.

"Requiring the FBI, [the Drug Enforcement Administration] and other agencies to obtain a warrant before deploying these surveillance technologies—in most circumstances—is a positive first step," says Nathan Freed Wessler, staff attorney for the American Civil Liberties Union's Speech, Privacy, and Technology Project. "However, this policy does not adequately address all concerns."

The new Justice Department policy does not apply to state and local agencies, who may continue to use the technology without warrants, or federal agencies using the device abroad.

The policy also provides two circumstances in which obtaining a warrant is not required. First, in "exigent circumstances," such as in "the need to protect human life or avert serious injury." Second, in "exceptional circumstances"—an undefined situation where an exigent circumstance does not exist, "but the law does not require a search warrant and circumstances make obtaining a search warrant impracticable."

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."

The Pen Register Statute is a law passed by Congress dealing with the data collected from a physical device used by law enforcement to record the numbers dialed on a telephone. The approval requirement of the Pen Register Statute, which allows agencies to use the device, doesn't meet the same level of judicial oversight as a warrant. Law enforcement agencies have invoked the Pen Register Statute to use stingrays without warrants.

"The law that Congress passed that deals with collection of that Pen Register information sets a very low bar for getting a court order," says Wessler. "All that's required is that the government certify that the information they're seeking is relevant to an ongoing investigation, and 'relevant'is extraordinarily easy to demonstrate."

"A warrant on the other hand requires a showing of probable cause," he continues. "It requires actual facts indicating that the person being investigated committed or is about to commit a crime and that the information to be searched is going to be evidence to that crime. In this case the information would be the location of the phone."

Deputy Attorney General Sally Yates said that the new policy "is designed to promote transparency and consistency and accountability, all while being mindful of the public's privacy interest," The Washington Post reports. But given the ambiguity of the policy's wording, that transparency may be hard to find.