Federal cellphone surveillance now requires a warrant. Why now?

In a continuing battle over the use of sophisticated surveillance technology that can track and collect information from cellphones, the Justice Department demanded that federal law enforcement officials obtain a search warrant before using such tracking devices in an investigation.

The technology – known as a cell-site simulator or, more colorfully, a “StingRay” – is able to dupe cellphones into connecting to it by posing as a nearby cell tower, allowing law enforcement agencies to track a particular cellphone’s location. 

In doing so, the briefcase-sized devices also connect to other phones nearby, enabling them to collect tracking information about bystanders who are not the target of an investigation, raising privacy concerns for civil liberties advocates and lawmakers in several states. 

The Justice Department says its order is intended to provide more standardized guidelines for how federal law enforcement officials – including the F.B.I., the Drug Enforcement Administration, and the Marshals Service – use the technology.

“The policy is really designed to try to promote transparency, consistency, and accountability, all while being mindful of the public’s privacy,” deputy attorney general Sally Yates said at a briefing yesterday, according to the New York Times.

But it will not apply to local and state police, who have increasingly adopted cellphone tracking technology as an alternative to time-consuming “pen register” surveillance, which involves using data from phone companies to trace calls and requires a warrant.

“The history of the cell-site simulator is that it was essentially designed so that the government could engage in surveillance abroad where they couldn’t go to the phone company and get records,” says Brian Owsley, a law professor at the University of North Texas at Dallas. 

Mr. Owsley, who oversaw such requests as a federal magistrate judge in Texas, says that while the policy is a good first step, prompted by a spate of media reports on cellphone tracking, it’s unclear what federal agencies will do with the data they collect.

Civil libertarians also welcomed the new policy as a necessary dose of sunlight in the often-secretive world of law enforcement investigations, but said they hoped to see further guidelines on how local police use the devices.

“It’s certainly a step in the right direction,” says Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union's Speech, Privacy and Technology Project. “There is still a distance to go until the Justice Department adequately protects Americans’ privacy rights. It’s silent even about when the Department of Justice loans it to a local agency, and about what happens when the department gives grant money to local agencies to buy their own StingRays.”

But the trade organization that represents federal law enforcement officers says the policy is not as much of a sea change as it appears to be.

"I think these are common practices that are just now becoming policy," says Don Mihalek, legislative director of the Federal Law Enforcement Officers Association. Only a few federal agencies have actually used cellphone tracking, he says, and those that do have begun requiring their agents to obtain a warrant, as the Justice Department now requires.

Agencies "do a very good job of making sure their agents follow the law, and ensuring the case they do bring to court exceeds the standard for probable cause and ends up securing a conviction," Mr. Mihalek says.

Cell phone tracking devices are also capable of receiving text messages, calls, e-mails, and other data sent from cellphones, but the department says in a statement that federal agents would not be allowed to collect this type of information. The new policy will also include reporting requirements for federal agencies to disclose how the devices are used and guidelines on how data from cellphone trackers should be deleted.

Concerns about secrecy run through much of the debate about cellphone trackers. In some cases, manufacturers such as Harris Corporation, the Florida company that makes the StingRay, requires federal agencies purchasing the device to sign non-disclosure agreements.

Leaked e-mails from a Seattle police detective, first reported by Ars Technica, reveal similar levels of security among local police. “It is important for us to keep this sophisticated technique confidential,” the detective, Len Carver, wrote in an e-mail from May 2014 to his colleagues, which was unearthed by a local activist named Andrew Charles Hendricks.

“By their very nature, authority to use the tools (pings and tracking) must remain covert to be effective. Public disclosure of the technique could render this investigative tool useless,” Mr. Carver added, noting that the FBI also requires local police who use its cellphone trackers to sign non-disclosure paperwork.

Despite the Justice Department’s efforts, part of the reason civil liberties advocates remain concerned is because so much of how cellphone trackers are used – by federal and local law enforcement alike – remains shrouded in confusion.

Mr. Wessler of the ACLU wonders about two vaguely-worded exemptions to the Justice Department’s policy, which allow federal agents to avoid obtaining a warrant in the event of “exceptional circumstances” where a warrant is not required and “exigent” circumstances, “which make obtaining a search warrant impractical.”

“It’s hard to imagine what these exceptional circumstances are,” he says. “We’re concerned that may be the loophole that swallows this change.”

Owsley, the law professor, points out that federal judges often previously approved requests for more expansive cellphone tracking devices under the impression that they were approving traditional “pen register” phone taps, which have been a standard surveillance tool since the 1980s.

Acknowledging the influence of changing state laws – such as one passed in May in Washington state which prohibits the use of StingRay devices without a warrant – he wondered about the Justice Department’s motivations.

“The question that I have is: why are they doing this now?” he says. “So to now say they’re going to comply with that standard, does that mean that they’re acknowledging that all their previous applications were not up to a constitutional standard?"

[Editor's note: The original version of this article misstated the name of the legislative director of the Federal Law Enforcement Officers Association. His name is Don Mihalek.]