Justice Dept. Mulling Reform on Phone Tracking, as Long as It Doesn't Actually Help People

Law enforcement leaders seem concerned that due process helps defendants. That's the point.


"Can you ping me now?"
Credit: Digitalgenetics | Dreamstime.com

The Wall Street Journal today (paywalled, but bypassable via Google news search) has some unnamed Department of Justice (DOJ) officials saying they're looking at revealing more information (really, any information at this point counts as "more") about how the government and law enforcement agencies use cellphone tracking devices. And they may start applying a little more of what we like to call "due process" when it comes to snooping on where these phones are when they're investigating:

The move comes amid growing controversy over the Justice Department's use of such devices, some versions of which, as The Wall Street Journal reported last year, are deployed in airplanes and scan data from thousands of phones used by Americans who aren't targets of investigations.

There are still many instances where law enforcement doesn't get warrants before using the devices, sometimes called "IMSI catchers" and known by various names like Stingray, Hailstorm, and "dirtbox," according to officials' public statements. The agencies that use the devices within the Justice Department—the FBI, the U.S. Marshals Service and the Drug Enforcement Administration—each have different rules and procedures for their use.

The Justice Department review will determine how they should be used, officials said.

A Justice spokesman said the department is "examining its policies to ensure they reflect the Department's continuing commitment to conducting its vital missions while according appropriate respect for privacy and civil liberties."

But there's a bigger problem than just getting warrants. Local law enforcement agencies have been using these tracking devices, too, and they've been deliberately concealing this information from the courts in order to keep defendants and their attorneys from challenging the constitutionality of what they're doing. As the Wall Street Journal notes, the FBI requires law enforcement agencies to conceal this information in order to get access to the technology, even if it means they have to drop charges. In the midst of this promise of more transparency and respect for civil liberties, there's a very damaging admission:

Officials said they don't want to reveal so much that it gives criminals clues about how to defeat the devices. Law-enforcement officials also don't want to reveal information that would give new ammunition to defense lawyers in prosecutions where warrants weren't used, according to officials involved in the discussions.

That paragraph drew the attention of the American Civil Liberties Union, which has been suing to open up details about how phone tracking is being used. ACLU Attorney Nathan Freed Wessler responded specifically to that law enforcement concern in a blog post this morning:

Law enforcement agencies have been violating the rights of defendants and non-suspects for years by failing to get warrants and then hiding the fact and details of Stingray use from defense attorneys and courts. Trying to insulate these violations from challenge by maintaining secrecy until pending cases have concluded will perpetuate the government's outrageous conduct, not ameliorate it.

Moreover, the foundations of the government's Stingray secrecy regime have already crumbled. In public records cases brought by the ACLU, judges have rejected the government's half-baked rationales for extreme secrecy and ordered basic and accurate information about Stingray use released. Judges in criminal cases have also pushed back, ordering disclosure of information to defense attorneys and threatening to hold police officers in contempt of court for refusing to answer questions under oath. As my colleague Chris Soghoian and West Point professor Stephanie Pell have meticulously demonstrated, extensive information about Stingrays is already public, making the government's arguments for secrecy nonsensical. The time to end the charade of concealment is now. The FBI should begin by releasing unredacted copies of the nearly 5,000 pages of whited-out Stingray documents it recently made public in response to Freedom of Information Act requests. Other federal agencies that make heavy use of Stingrays, including the U.S. Marshals Service and the DEA, must also come clean.

As with every other promise of transparency and reform by the Department of Justice, we'll have to wait and see what actually happens. And as with every other promise of transparency and reform by the Department of Justice, it's also worth noting that this isn't something they've decided to change out of any actual new-found respect for civil liberties but because they're being caught out and sued over it.