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Feds now required to get warrants for Stingray surveillance

Tucson police no longer using cell-tracking devices

The Department of Justice published new guidelines Thursday on the use of cell-phone surveillance equipment by federal agents.

Tucson police said they are no longer using the gear, citing training costs and privacy concerns.

The policy requires investigators to get judicial warrants, inform judges that the technology may sporadically affect nearby cellphone services, and assess the retention of data scooped up during investigations. 

Popularly known as Stingray, one of the brands of such devices, the instruments mimic a cellphone tower, tricking phones nearby to switch to the fake network and transmit their location. 

Some versions of the device can also capture voice and data transmissions, a potential violation of the civil rights of bystanders. 

In a news release, Deputy Attorney General Sally Quillian Yates said the technology was instrumental in aiding law enforcement agencies in a "broad array of investigations, including kidnappings, fugitive investigations and complicated narcotics cases." 

"This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals’ privacy and civil liberties," Yates said. 

The policy comes as civil rights groups, including the ACLU, Electronic Frontier Foundation, and Electronic Privacy Information Center have outlined serious questions about the use of these devices by federal and local law enforcement. 

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The devices, marketed as "Stingray" or "Stingray II" by the Florida-based Harris Corp., have been used by the FBI since at least 1995, according to EPIC. 

Other versions exist and are marketed under different names, including Hailstorm and Kingfish.

Research by the ACLU shows that at least 53 agencies in 21 different states are known to have used the technology, including a half-dozen federal law enforcement agencies, and the Department of Defense.

This includes the Tucson Police Department, which acquired a Stingray in 2010 and used the device in at least five cases without a warrant. 

The use of the device by TPD only became came to light in 2013 when Mohammad "Beau" Hodai, an investigative reporter with D.B.A. Press, filed a public-records request for a range of documents relating to the surveillance gear. 

After several requests, TPD responded only with four documents: a purchase agreement between the city and the company, a contract for training and equipment, a non-disclosure agreement, and an email conversation between the department and a representative from Florida-based Harris Corp. 

Hodai and the ACLU sued for the remaining documents based on Arizona law, which holds that all government records are by default mandated to be available to the public with only a few narrow exemptions.

In December, Pima County Superior Court Judge Douglas Metcalf ruled against Hodai and the ACLU, saying that releasing training materials, manuals, and other material could "compromise sensitive law enforcement techniques" by allowing criminals to understand how local and federal law enforcement agencies use the equipment. 

Hodai and the ACLU appealed the decision to the Arizona Court of Appeals in June.

The department is no longer using any cell-tracking devices, Assistant Chief John Leavitt said Friday.

The gear takes extensive training to operate effectively. "We would have to have three or four officers on it full-time to keep up with it," he said. Those costs, and ongoing concerns about privacy rights, led the department to shelve using the equipment over a year ago, he said.

The new federal policy will require agencies to follow a set of guidelines on the retention of information collected through the use of cell-site simulators. This includes the implementation of an auditing program to ensure that data is deleted. 

"For example, when the equipment is used to locate a known cellular device, all data must be deleted as soon as that device is located, and no less than once daily," the DOJ said. 

The DOJ also limits harvesting the content of cellphones using Stingrays during criminal investigations. "This means data contained on the phone itself, such as emails, texts, contact lists and images, may not be collected using this technology, " the DOJ said. 

Requiring federal agencies to follow the new policy is a "positive first step," said Nathan Freed Wessler, a staff attorney with the ACLU.

"After decades of secrecy in which the government hid this surveillance technology from courts, defense lawyers, and the American public, we are happy to see that the Justice Department is now willing to openly discuss its policies," he said.

"However, this policy does not adequately address all concerns. Disturbingly, the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices," Wessler said.

Wessler also noted that the guidelines carve out an exception for warrants under exceptional circumstances and allows the agents to hold data for up to 30 days.

These loopholes must be closed, Wessler said, and Congress "should act to pass more comprehensive legislation to ensure that Americans’ privacy is protected from these devices and other location tracking technologies." 

According to the DOJ, federal investigators can skip getting a warrant when "circumstances make obtaining a search warrant impracticable," however, agencies must track and report the number of times they employ this exception. 

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