PPSA Challenges DOJ to Release Stingray Records

The Project for Privacy and Surveillance Accountability (PPSA) filed a Freedom of Information Act request today asking the Department of Justice to release records on its use of cell site simulator technology.
 
These devices give government the ability to conduct sweeping dragnets of the metadata, location, text messages and more in the cell phones of people within a geofenced area. Commonly called stingrays (after the Harris Corp. brand name StingRay), and dirtboxes (or DRT boxes used on helicopters or drones for aerial surveillance), these devices can sweep up sensitive and personal information, not just from a suspect, but from hundreds or thousands of people in the vicinity.
 
The use of such technologies is supposed to be governed by a September, 2015, policy document prescribing restrictions on the use of stingrays and requiring an order under the pen register statute and a probable cause warrant before they can be used. These requirements, however, can be overlooked in a few “exigent” circumstances, such as a threat to life and limb, or hot pursuit of a fugitive, kidnapping, and the like.
 
“The 2015 DOJ memo spells out some useful standards for resorting to the use of a stingray,” said Gene Schaerr, PPSA general counsel. However, “in 2018, the ACLU documented at least 14 federal agencies that use stingrays, as well as 75 state agencies. Since then, there has been little insight into how federal and state agencies are actually deploying this increasingly affordable and ubiquitous technology.”
 
Accordingly, Schaerr concluded, “It is well past the time to shed light on how widespread the use of these devices is, and to determine if standards or governance has changed, or needs to change.”
 
PPSA’s request seeks the following records, among others:

• All records mentioning the “Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology,” Sept. 3, 2015.

 

• All agency records supplementing, modifying, interpreting or replacing the 2015 policy.

 

• All records mentioning or containing the training protocols referenced in that policy.

 

• Records relating to the number of times use of a cell-site simulator was approved under “exceptional” circumstances – and the circumstances for each use.

 

• All records mentioning both cell-site simulators and non-disclosure agreements (NDAs), including but not limited to: Any NDA forms, models, or templates; and any NDAs actually executed between any federal agency and any state or local law enforcement agency.

 
“This last request is particularly important,” Schaerr said. “There have been many reports of NDAs keeping state and local law enforcement from discussing the use of this technology even in the courtroom and in legislative testimony.
 
“As a civil liberties community, we need to get our arms around the use of a technology that so easily breaches the Fourth Amendment,” Schaerr said. “This is PPSA’s opening effort, one that will culminate in a closer and fuller examination of how this technology is being used on the ground and in the air by states and localities as well as the federal government.”