 That shouldn’t merit a headline, but it does. We’ve often reported on the Department of Justice’s responses to our Freedom of Information Act (FOIA) requests for internal policies concerning the use of cell-site simulators, commonly known as stingrays. In the past, we’ve received non-response responses to our FOIA request, including one in which DOJ sent us 40 redacted pages from MISTER BLANK in the office of BLANK, with only this statement: “Hope that’s helpful.” We noted at the time that this could only be taken as a middle-finger salute to FOIA itself. There now seems to be a more responsive spirit at DOJ. A new reply to our FOIA request arrived this month. True, it was still less than fulsome. But it was a response! And what it did reveal was encouraging. It showed a determination to abide by a 2015 DOJ memo requiring probable cause warrants before this technology can be used, except in emergency circumstances. DOJ personnel were informed: “The core of this new policy is to require search warrants for use of the devices, except in rare circumstances such as a threat to life and limb. It also requires transparency with the courts in the way that we apply for legal process, and it dictates what should be done with information about cell phones that are not related to the investigation.” This leaves you wondering why some previous respondents at DOJ chose obfuscation and a rude brushoff instead of showcasing an internal determination to abide by the Fourth Amendment. Stingrays are devices that mimic cell towers, pinging the phones of people within a geofenced area to reveal their location, movements, and potentially some contents within their phones. This technology can sweep up the personal information of hundreds of people in a given area. This actually happened when the Richmond, Virginia, police searched for a bank robber. Their sweep compromised the Fourth Amendment rights of diners in a Ruby Tuesday restaurant, guests at a Hampton Inn, residents of an apartment complex, and seniors in an assisted living facility. This incident demonstrates that while the Justice Department has a tight policy regarding the use of stingrays, different rules apply to a dozen other federal agencies and at least 75 state agencies around the country that also use this surveillance technology. The FBI instructs police to use stingrays to develop leads, but use other means to develop “primary evidence.” This sure sounds like a suggestion to construct parallel evidence. Shouldn’t defendants know if evidence used against them was taken from their phones? Still, we are happy to take good news when we can get. Here’s to encouraging the DOJ to continue to abide by its policy of applying a warrant requirement to stingrays. Comments are closed.
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