No Warrant Needed to Track Cellphones in Public Places, FBI Says

Phone at public pool
Senators release letter outlining loose FBI restrictions regarding “stingray” technology. Lee Celano/Reuters

It is well known that law enforcement agencies sometimes use "stingrays"—devices that mimic cellphone towers—to collect everything from cell users' locations to their call logs. But the details of such use, including when and how stingray technology is employed, remain shrouded in secrecy. Now, two members of the Senate Judiciary Committee have reached out to Attorney General Eric Holder to question an FBI policy that makes major exceptions to requirements that search warrants be acquired before employing stingray technology.

As reported in Ars Technica, Senate Judiciary Committee members Senator Patrick Leahy, D-Vermont, and Senator Chuck Grassley, R-Iowa, penned a letter to Holder and Secretary of Homeland Security Jeh Johnson following private meetings with the FBI.

In the December 23 letter, which was released last week, the senators explain that the FBI's new policy, "requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including: (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."

The letter goes on to say that these broad exceptions are worrisome, and wonders "whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used."

Already, nine states have passed laws that require police to obtain a warrant before tracking a cellphone in real time. But the Obama administration has long-maintained that there should be no presumption of privacy in public places.

In 2010, a federal appeals court reversed the conviction and life sentence of a cocaine dealer whose car was tracked with a GPS for a month without a warrant. The administration demanded the court rehear the case, saying that "the panel's conclusion that [Antoine] Jones had a reasonable expectation of privacy in the public movements of his Jeep rested on the premise that an individual has a reasonable expectation of privacy in the totality of his or her movements in public places."

In 2013, police placed a webcam on a utility pole in order to surveil the home of a suspected drug dealer for six weeks. The government argued that "law enforcement is authorized to use the pole camera only to record activities that are otherwise open to public view and not protected by the Fourth Amendment." In December, a federal judge decided to toss the evidence.