Justice Department Rethinks Warrantless Cellphone Tracking

CREDIT: AP PHOTO/SANTI PALACIOS
CREDIT: AP PHOTO/SANTI PALACIOS

Law enforcement officers will no longer have carte blanche to use cellphone location-tracking devices thanks to a new Justice Department (DOJ) policy announced Thursday.

Agencies such as the FBI and Drug Enforcement Administration (DEA) routinely use cell-tower spoofing to track a suspect’s location without obtaining a warrant or establishing probable cause — even for non-emergencies. The devices have become a staple in police departments and federal agencies but have been criticized for violating civil liberties, and have been used to target protesters’ whereabouts.

But in an effort to be more transparent, the Justice Department issued new guidance that requires all of its agencies to only use these devices during active criminal investigations and not as means to siphon data from the devices.

“This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals’ privacy and civil liberties,” Deputy Attorney General Sally Quillian Yates said in a news release.

Stingrays are used in 21 states and the District of Columbia by 53 agencies, according to the American Civil Liberties Union. The policy outlines a set of mandatory practices and data-handling regarding cell-tower spoofing, including deleting the device’s content once it has been located and at least once every 30 days for unknown devices and daily for those belonging to known suspects once it’s in police custody.

Agencies must also get a warrant bolstered by probable cause before using stingrays except under exigent circumstances. That means warrantless stingray use is acceptable when there is imminent harm to a person or destruction of evidence, or when pursuing a fleeing suspect.

However, law enforcement agencies can also use the technology outside of emergencies or exigent circumstances when the law doesn’t require a search warrant. The DOJ said it expects few cases to fall under that category, according to the policy document.

Police and other law enforcement agencies use a device, known as a stingray, that mimics a cell-tower and emits a location-sniffing signal that nearby phones pick up. They also use questionably legal device, which tracks cellphones without posing as a cell tower and simply picks up the radio waves phones release when they’re looking for a signal. The use of Wolfhounds or Jugulars as this class of device is called is not mentioned in the new guidance document.

Phone tracking has become a key law enforcement tool but has sparked privacy concerns among advocates and the public. The U.S. Supreme Court banned police search of an arrested individual’s cell phone without a warrant in 2014, limiting it cases under exigent circumstances such as a potential bomb detonation.

The federal government previously pushed for more rights to secretly monitor phones, ordering local law enforcement to reject request for information on stingrays. The DOJ initially fought against phone manufacturers automatically installing a data kill-switch that allows phone owners to remotely erase a device when it’s stolen or out of their possession, but later changed its position. Former Attorney General Eric Holder similarly railed against Apple and Google for promoting phone data encryption, saying the technology put individuals “above the law.”

While the policy is considered a win by privacy advocates, it does leave some legal loopholes. The Electronic Frontier Foundation noted that data collected in violation of the new rules may still be admissible in court.

“The new policy isn’t law and doesn’t provide any remedy to people whose data is swept up by Stingrays operated without a warrant,” EFF attorney Nate Cardozo wrote in a blog post. “Indeed, it won’t even act to keep evidence collected in violation of the policy out of court.”

The policy also doesn’t stop law enforcement agencies from using stingrays for national security purposes, Cardozo wrote.