DOJ emails show feds kept judges in the dark about cellphone tracking device

Josh Peterson Tech Editor
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Department of Justice documents obtained by the ACLU reveal that the department has not been “forthright” with California judges about its use of a controversial and sophisticated cellphone tracking device, according to the ACLU.

Federal investigators, according to the ACLU’s analysis of Justice Department emails, have “routinely” used a portable technology called a “stingray,” which masquerades as a cellphone tower by emitting a powerful signal. The goal is to trick nearby cellphones into connecting to the stingray, which can then gather data transmitted by the phones.

The device target the cellphones of intended suspects, but it can also capture the cellphone data of nearby innocent people for up to several kilometers.

The emails —obtained through a Freedom of Information Act request filed by the ACLU of Northern California and the San Francisco Bay Guardian — came to light as part of a larger investigation into the methods used by the Justice Department to track down a suspect in an electronic tax fraud scheme.

The Justice Department sought a court order mandating that Verizon hand over location data for the phone of the suspect, Daniel Rigmaiden. While the Justice Department’s request mentioned that it would use a mobile location tracking device, it did not specify that a stingray would be used.

Rigmaiden, who was indicted in 2008, has since argued that he should have access to details about the investigative methods used to track him down. A federal magistrate judge has been sympathetic to that position.

The Justice Department has also argued that in-field use of the device was an innocent mistake by agents “using a relatively new technology,” but the emails obtained by the ACLU demonstrate that the government’s undeclared in-field use of the stingray was not isolated to the Rigmaiden case.

For example, an email chain dated May 2011 showed that federal investigators were still using the technology in the field, although their court applications for surveillance failed to “make that explicit.”

The federal government has argued, however, that tools like the stingray can be used without a search warrant because they do not capture the content of communications made with cellphones. Instead, they capture only limited data, such as the phone numbers dialed.

Federal officials also contend that they delete the tracking data collected during stingray surveillance operations.

The Electronic Privacy Information Center (EPIC) also obtained documents from the FBI in February 2013 that revealed the technology not only targeted Rigmaiden, but also innocent cellphones within the vicinity of the signal.

The documents showed that the bureau’s agents have been using “cell site simulator” technologies since 1995.

The FBI told The Wall Street Journal in 2011 that the bureau “considers the devices to be so critical that it has a policy of deleting the data gathered in their use, mainly to keep suspects in the dark about their capabilities.”

Additionally, a September 2012 investigative report by LA Weekly found that law enforcement across the country — including Los Angeles, Miami, Fort Worth, and Gilbert, Arizona — are secretly using the technology.

A federal court hearing on U.S. v Rigmaiden is scheduled for Thursday in Arizona.

There, Linda Lye  — staff attorney at the ACLU of Northern California — will argue that evidence collected against Rigmaiden with the stingray should be disregarded because the government failed to tell the federal magistrate judge that it was using the tool to collect data on the suspect.

“In court Thursday, I will argue that this email confirms the need for suppressing the evidence in the Rigmaiden case because it shows that the government was engaged in a widespread practice of withholding important information for judges, and that it did so for years,” wrote Lye in a blog post.

“We hope that the court sends the clear message to the government that it cannot keep judges in the dark,” said Lye. “Judges are not rubber stamps – they are constitutional safeguards of our privacy.”

Federal government electronic surveillance has reportedly seen a dramatic increase over the past several years.

A 2012 report by the ACLU revealed that between 2009 and 2011, warrantless electronic surveillance requests by the Justice Department to spy on phone communications increased 60 percent from 23,535 to 37,616.

Also, last week in a speech to the American Bar Association, FBI general counsel Andrew Weissman told audience members that the bureau is seeking the power to spy on emails or Gchat in real-time, according to a Wednesday report by Slate.

Google — in its period transparency report — has also reported a continual rise in the number user data requests filed by governments, including the U.S.

The DOJ did not respond to The Daily Caller’s request for comment by the time of publication.

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