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Michael Haugen | September 4, 2015
Yesterday, the Department of Justice issued a new policy directive regarding federal law enforcement’s use of so-called “Stingray” devices, which essentially function as dummy cell towers to acquire certain identifying information from cellular devices.
While law enforcement has maintained that Stingray devices are solely to provide “valuable assistance in support of important public safety objectives,” critics have objected to their use, citing privacy concerns that the technology amounts to “dragnet” searches—overly broad nets that law enforcement cast to catch criminals that ensnare innocent, unwitting citizens as well.
Hoping to quell some of these objections, the Deputy Attorney General has announced that as a matter of new policy, federal law enforcement agencies must now obtain search warrants backed by satisfactory probable cause before making use of Stingray devices, pursuant to Rule 41 of the Federal Rules of Criminal Procedure (or applicable state equivalent), with two exceptions:
Admittedly, this is a rather vague explanation that doesn’t exactly shut the door on continued “misperceptions” that the department is trying to put to bed. For what it’s worth, however, the department expects such instances to be “very limited,” and requires approval from executive-level personnel at the agency’s headquarters and the relevant U.S. Attorney, then from a Criminal Division DAAG. Additionally, the numbers of times the use of simulators are approved under this subsection must be logged for future audit, and must still comply with the Pen Register Statute.
So, absent specificity regarding when such “exceptional circumstances” exist that search warrants aren’t required, there appear to be steps taken to provide accountability and oversight.
While any strengthening of Fourth Amendment privacy protections are a welcome development, it’s important to acknowledge a couple shortcomings of this directive.
First, just as with former Attorney General Holder’s embargo earlier this year of federal adoptions in forfeiture cases, this new policy is administrative in nature, not legislative. It does not have the force of law, and can be rescinded at any time. Secondly, while this directive places restrictions on federal agencies, it has no such effect on state or local law enforcement, who can continue their use of Stingray devices unimpeded.
While action will need to be taken by legislatures—state and federal—to ensure more permanent protection of citizen’s civil liberties, this is a positive development that provides greater protections for innocent people’s privacy rights.
Photo: WRCB TV