Dirtboxes and Stingrays

I have written several items about cell site simulators or Stingrays.  Dirtboxes are stingray-like devices hung from an airplane that DoJ agencies use to capture tens of thousands of cell phones as they fly over hundreds of miles.

I said early on that it was going to be years before the crap hit the fan, but I later said I was wrong.  It is moving much faster.

Senator Grassley (R-IA) and Leahy (D-VT) have been spearheading the effort to get answers from the DoJ.  This post contains two items from Sen. Grassley’s web site about the questions the Senate is asking DoJ about their use of Dirtboxes and Stingrays.

http://www.grassley.senate.gov/news/news-releases/leahy-grassley-press-administration-use-cell-phone-tracking-program
Dec 31, 2014

WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) pressed top Obama administration officials on the use of cell-site simulators, which can unknowingly sweep up the cell phone signals of innocent Americans.

Recent news reports have chronicled the use of such simulators by law enforcement, explaining that the simulators have the potential to capture data about the location of thousands of cell phones in their vicinity.  Leahy and Grassley previously pressed the FBI about the use of this technology.  In a joint letter sent last week to Attorney General Eric Holder and Secretary of Homeland Security Jeh Johnson, the Senators raised questions about exceptions to a new FBI policy to obtain a search warrant before using a cell-site simulator.  The Senators also asked about other agencies’ use of the technology.

“It remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology,” Leahy and Grassley wrote.

Outlining privacy concerns for innocent individuals, the letter continues: “The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them.”

A signed copy of the December 23 letter to Attorney General Holder and Secretary Johnson is available Here.  Text of the letter can be found below.

December 23, 2014

The Honorable Eric H. Holder, Jr.                                          The Honorable Jeh Johnson
Attorney General                                                                    Secretary of Homeland Security
Department of Justice                                                             Department of Homeland Security
950 Pennsylvania Avenue, N.W.                                            Washington, D.C. 20528
Washington, D.C. 20530

Dear Attorney General Holder and Secretary Johnson:

In recent months, media reports have detailed the use of cell-site simulators (often referred to as “IMSI Catchers” or “Stingrays”) by federal, state and local law enforcement agencies.  Most recently a November 14, 2014, Wall Street Journal article (“Americans’ Cellphones Targeted in Secret U.S. Spy Program”) reported that the United States Marshals Service regularly deploys airborne cell-site simulators (referred to as “DRT boxes” or “dirtboxes”) from five metropolitan-area airports across the United States.  Like the more common Stingray devices, these “dirtboxes” mimic standard cell towers, forcing affected cell phones to reveal their approximate location and registration information.  The Wall Street Journal article reports that “dirtboxes” are capable of gathering data from tens of thousands of cellphones in a single flight.

We wrote to FBI Director Comey in June seeking information about law enforcement use of cell-site simulators.  Since then, our staff members have participated in two briefings with FBI officials, and at the most recent session they learned that the FBI recently changed its policy with respect to the type of legal process that it typically seeks before employing this type of technology.  According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice.  Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology.

The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them.

For example, we understand that the FBI’s new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.

We have concerns about the scope of the exceptions.  Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used.  We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected.  But there is a question as to whether this sufficiently safeguards privacy interests.

Accordingly, please provide written responses to these questions by January 30, 2015:

1.    Since the effective date of the FBI’s new policy:
a.    How many times has the FBI used a cell-site simulator?
b.    In how many of these instances was the use of the cell-site simulator authorized by a search warrant?
c.    In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process?  Please identify the legal process used.
d.    In how many of these instances was the cell-site simulator used without any legal process?
e.    How many times has each of the exceptions to the search warrant policy, including those listed above, been used by the FBI?

2.    From January 1, 2010, to the effective date of the FBI’s new policy:
a.    How many times did the FBI use a cell-site simulator?
b.    In how many of these instances was the use of a cell-site simulator authorized by a search warrant?
c.    In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process?  Please identify the legal process used.
d.    In how many of these instances was the cell-site simulator used without any legal process?
e.    In how many of the instances referenced in Question 2(d) did the FBI use a cell-site simulator in a public place or other location in which the FBI deemed there is no reasonable expectation of privacy?

3.    What is the FBI’s current policy on the retention and destruction of the information collected by cell-site simulators in all cases?  How is that policy enforced?

4.    What other DOJ and DHS agencies use cell-site simulators?

5.    What is the policy of these agencies regarding the legal process needed for use of cell-site simulators?
a.    Are these agencies seeking search warrants specific to the use of cell-site simulators?
b.    If not, what legal authorities are they using?
c.    Do these agencies make use of public place or other exceptions?  If so, in what proportion of all instances in which the technology is used are exceptions relied upon?
d.    What are these agencies’ policies on the retention and destruction of the information that is collected by cell-site simulators?  How are those policies enforced?

6.    What is the Department of Justice’s guidance to United States Attorneys’ Offices regarding the legal process required for the use of cell-site simulators?

7.    Across all DOJ and DHS entities, what protections exist to safeguard the privacy interests of individuals who are not the targets of interception, but whose information is nevertheless being collected by cell-site simulators?

Please number your written responses according to their corresponding questions.  In addition, please arrange for knowledgeable DOJ and DHS officials to provide a briefing to Judiciary Committee staff about these issues following the provision of these written responses, but no later than February 6, 2015

http://www.grassley.senate.gov/news/news-releases/grassley-leahy-press-doj-again-details-use-cell-phone-tracking-technology

Mar 23, 2015

WASHINGTON – ‎Senators Chuck Grassley of Iowa and Patrick Leahy of Vermont, Chairman and Ranking Member of the Senate Judiciary Committee, questioned the Justice Department about reports that federal law enforcement agencies have deployed cell phone tracking technology on behalf of  federal intelligence agencies. In a letter to Attorney General Eric Holder and Acting Deputy Attorney General Sally Yates, the senators ask whether law enforcement’s use of technology capable of scanning data from thousands of cell phones is part of a domestic test operation on behalf of the intelligence community.  The letter follows a media report detailing cooperation between the Central Intelligence Agency and the U.S. Marshals Service to domestically test surveillance technology.

Grassley and Leahy raised concerns about the legal and privacy implications of this technology in a letter last year to Attorney General Eric Holder and Homeland Security Secretary Jeh Johnson.  The senators have not yet received a written response from the Justice Department, as requested in that letter.

The devices mimic cell phone towers to connect with and collect identifying information from cell phones in the area. While reports have indicated that the technology has been deployed for domestic law enforcement purposes, it remains unclear what legal authority and privacy protections are in place for their use.

A signed copy of the letter is available here.  Text of the letter is below.

March 18, 2015

VIA ELECTRONIC TRANSMISSION

The Honorable Eric H. Holder Jr.
Attorney General
U.S. Department of Justice
The Honorable Sally Quillian Yates
Acting Deputy Attorney General
U.S. Department of Justice

Dear Attorney General Holder and Acting Deputy Attorney General Yates:

In June and December, we wrote to the Department of Justice (DOJ) and other agencies raising questions about the use of cell-site simulators.  Often referred to as “IMSI Catchers,” “dirtboxes,” or “Stingrays,” these devices mimic standard cell towers and force affected cell phones to reveal their approximate location and identifying serial number.  Although we understand that some versions of these devices can intercept and collect the content of communications, the Federal Bureau of Investigation (“FBI”) and the United States Marshals Service (“USMS”) both maintain that they do not use the devices in this way.  These agencies have also reported that they purge any data collected from non-targeted telephones once an investigation is complete.

Last week, the Wall Street Journal reported that the USMS field-tested various versions of this technology in the United States from 2004 to 2008 on behalf of the Central Intelligence Agency (“CIA”).  If this report is true, such practices raise additional concerns.  In December, we asked about the full range of DOJ entities that use this technology, the policies in place to protect the privacy interests of third parties whose information might be collected by these devices, and the legal process that is sought prior to their deployment, including the information provided to courts that may authorize their use.  DOJ’s failure to answer these questions has heightened our concerns.

Accordingly, please provide written responses to each of the following by March 27, 2015:

1.    Does DOJ policy ever permit the use of cell-site simulators to capture the content of communications domestically?  If so, under what circumstances is this permitted?

2.    Has DOJ or any DOJ entity tested cell-site simulators or other surveillance technology on behalf of the intelligence community, by employing the devices in the course of domestic law enforcement operations?    If so, when, to what extent, and under what legal authority?

3.    What, if any, DOJ policy governs the testing and deployment of new surveillance technology?

4.    Please provide written responses to Questions 1 through 7 of our December 23, 2014 letter, as requested in that letter.

Should you have any questions, please contact Jay Lim at (202) 224-5225 or Lara Flint at (202) 224-7703.  Thank you for your cooperation in this important matter.

Sincerely,

 

Charles E. Grassley
Chairman
Patrick Leahy
Ranking Member

 

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