[Rushtalk] Slipper slope justice

Paf Dvorak notmyname at thatswaytoomuch.info
Fri Apr 5 09:34:50 MDT 2013

Can you hear me now? Feds admit FBI warrantless 
cellphone tracking ‘very common’

FBI investigators for at least five years have 
routinely used a sophisticated cellphone tracking 
tool that can pinpoint callers’ locations and 
listen to their conversations ­ all without 
getting a warrant for it, a federal court was told this week.

The use of the “Stingray,” as the tool is called, 
“is a very common practice” by federal 
investigators, Justice Department attorneys told 
the U.S. District Court for Arizona Thursday, 
according to the American Civil Liberties Union.

Installed in an unmarked van, Stingray mimics a 
cellphone tower, so it can pinpoint the precise 
location of any mobile device in range and 
intercept conversations and data, said Linda Lye, 
staff attorney at the ACLU of Northern California 
in a blog post about the case.

In a rare public discussion of federal electronic 
surveillance capabilities and authorities, 
Justice Department lawyers told the court hearing 
that, instead of a warrant, the FBI operates 
Stingray and other cellphone-mimicking technology 
under the authority of “pen register” orders. 
These court orders, also known as “tap and trace” 
orders, are generally issued to allow 
investigators to collect only so-called 
“metadata” ­ like all phone numbers calling to or 
called from a particular number.

But Stingray collects much more than just phone 
numbers and also “sweep[s] up the data of 
innocent people who happen to be nearby,” according to the ACLU filing.

Given the broad nature of the information 
Stingray collects and its ability to eavesdrop on 
conversations, many federal judges insisted that 
they should be told when its use was envisaged 
under a tap and trace order, the ACLU filing says.

Tap and trace orders are generally more easily 
granted than a warrant, which requires “probable 
cause” under the Fourth Amendment.

But Justice Department emails that the group 
obtained under the federal Freedom of Information 
Act and filed with their brief show that 
government lawyers were concerned some FBI agents 
were not properly disclosing their use of Stingray.

“It has recently come to my attention that many 
agents are still using [Stingray] technology in 
the field although the pen register application 
does not make that explicit,” reads one May 2011 
email from a Justice Department attorney.

“It is important that we are consistent and 
forthright in our pen register requests to the 
magistrates,” the attorney concludes.

The ACLU has filed an amicus brief in the case 
U.S. vs. Rigmaiden. An amicus brief is filed not 
by the defendant or anyone on his behalf, but by another interested party.

In the case, first brought in 2008, Mr. 
Rigmaiden, charged with identity theft, is 
seeking to suppress evidence obtained by Stingray 
on the basis that using it constitutes a search 
and requires a probable cause warrant.

The Department of Justice declined a request for 
comment, as neither they nor the FBI generally speak about ongoing litigation.

Read more: 

Paf Dvorak

<http://thatswaytoomuch.info/>notmyname at thatswaytoomuch.info  
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