PPSA Files FOIA Requests on Stingrays and Secret Court Amici

​Our government can operate in grey areas of the law because agencies have become adept at exploiting every loophole, exception, or tiny bit of leeway in a statute. PPSA announces today the submission of two Freedom of Information Act requests to the Department of Justice to shed light on practices in two such areas of concern – surveillance of cellphone data by devices that imitate cell towers, and the role of privacy experts in a secret court.
 
The first FOIA request concerns cell-site simulators that law enforcement agencies use to mimic cell towers, allowing them to snatch location data and other information from the cellphones of people at a given location. These devices, commonly known as “stingrays,” are used to track people by pinging their phones. This digital intrusion is at odds with the spirit of the Supreme Court opinion in Carpenter v. United States, where the Court in 2018 rejected unlimited government access to cellphone location data.
 
But the high Court did not specifically ban cell-site simulators. So, with this tiny distinction, stingrays are still commonly used by 14 federal agencies and police in cities around the country. In 2015, the Department of Justice did produce a memo requiring a warrant for some uses of this technology. That memo, however, allows federal agencies free use of this technology in “exigent” circumstances.
 
How dire does a circumstance have to be to be “exigent”? Virtually everyone agrees that if a child is thrown into a stranger’s car, or a terrorist is known to be planting a bomb, law enforcement should be able to get their hands on stingray data in an instant. But given the slipperiness with which the government defines legal terms, what are the actual circumstances in which stingrays have been used?

• PPSA is asking the Department of Justice, and some its key components – the Executive Office for United States Attorneys, the Federal Bureau of Investigation, DOJ’s Criminal Division, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives – to produce records reflecting each instance in which a cell-site simulator was used without a warrant, and the justification for each use.

 
In this way, PPSA is seeking to discover if federal agencies are playing fair with the “exigent” exception.
 
PPSA’s second FOIA request concerns the use – or rather, the non-use – of amicus advisors by the FISC. A little history is in order. When Judge James E. Boasberg of the secret court heard requests from the FBI for permission to surveil presidential campaign aide Carter Page, the judge could have sought advice from a privacy lawyer with high-security clearance. Such an amicus could have helped guide the judge through the competing issues in a case fraught with civil liberty concerns, not the least of which were the First Amendment rights of 137.5 million voters.
 
Judge Boasberg demurred. It appears he did not seek an amicus and missed spotting a circus of misdirection and shocking omissions in the FBI’s requests, including submission by an FBI lawyer of a forged document.
 
It is with this in mind that we supported the Leahy-Lee measure in the previous Congress that would bring checks and balances into FISC proceedings. This legislation would bring to the one-sided nature of FISC hearings a privacy-oriented advocate to independently verify the FISA application’s material assertions whenever a case touches on the civil rights of sensitive cases involving political campaigns, federal officials, the practice of journalism, religious minorities, or other sensitive areas.
 
Since this is not the law, PPSA filed this FOIA request.

• PPSA is asking the Department of Justice to produce all records discussing the appointment of amici curiae in any FISC proceeding, all records reflecting each case in which the FISC has appointed someone to serve as an amicus, and all records reflecting each case when the FISC considered appointing an individual to serve as an amicus but elected not to do so.

 
We would prefer not to have to pull out a legal microscope. But given the disingenuous way our government finds exceptions for lawless acts, we feel they have given us no choice.
 
PPSA will report on any responses.