DOJ Response to PPSA Show that Warrants Aren’t So Hard After All

​During last year’s congressional debate over surveillance, many defenders of the status quo, including then-FBI Director Christopher Wray, argued that a warrant requirement for the inspection of Americans’ personal information would be a security risk because it would be too time-consuming and burdensome.
 
But a recent response to one of our Freedom of Information Act (FOIA) requests filed with the Criminal Division of the Department of Justice shows that filling out warrant applications are routine and close to boilerplate.
 
In recent years, many of our FOIA requests have gone ignored. In one instance, we received a rude response from the Department of Justice in which 39 pages were redacted, and the 40th page only said: “Hope that’s helpful.”
 
Perhaps there has been a recent change of heart at DOJ. When we sought documents about cell-site simulators (which mimic cell towers and trick cellphones into revealing personal information), we received a polite and partial response. Included in the release was a draft affidavit to guide special agents of the FBI in applying to a U.S. district court to obtain a search warrant to identify a particular cellular device.
 
In it, an agent is prompted to:
 

• Provide evidence that the target device is located within a given area.

 

• There is probable cause to believe that the targeted individual is likely carrying the targeted cellular device, and is “necessary to identify the suspect and establish a connection between the suspect and the suspected crime.”

 

• “Once investigators ascertain the identity of the Target Cellular Device, they will cease using the investigative technique.”

The draft warrant application concludes: “A search warrant may not be legally necessary to compel the investigative technique described herein. Nevertheless, I hereby submit this warrant application out of abundance of caution.”
 
The agent then submits this document as sworn testimony.
 
PPSA hopes this response to our FOIA is a sign of a renewed commitment to meet our lawful requests for documents. And we urge surveillance hawks to consider that the routine filing of such applications demonstrates that it is far from excessively burdensome.
 
There, that wasn’t so hard now, was it?

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