FBI gets creative on when they need a search warrant

The media has been talking about the feds running Stingrays and Dirtboxes to gather cell phone data on potentially thousands of Americans.  The government’s take on this has been that a warrant is not required.

The FBI made their position known in a private briefing to the Senate Judiciary Committee last week.  The result was a letter made public by Sens Grassley (R-IA) and Leahy (D-VT) that said:

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.

So, basically, the FBI is saying that if you are in public, you are fair game, no matter what or where.  For example –

The feds tried to convince the courts that they should be able to secretly and without a warrant, attach a GPS tracking device to a suspect’s car.  The feds got a conviction for dealing cocaine, apparently, partially, as a result of the GPS data.  The case went up to the Supremes and they ruled that a warrant was required.

The administration also attached a webcam to a light pole a hundred yards away from a suspect’s house with remote pan, tilt and zoom capability.  From hundreds of miles away, they could watch this suspect, look in the trunk of his car, look in his front window, etc.  He lived in a rural area, so he had the expectation of not having neighbors watching his every move.  The feds saw him shooting target practice in his yard, which is illegal in his county,  and based on that, got a warrant and found 4 guns and a few grams of meth.  A federal judge threw out the evidence.  The judge said that probable cause and a warrant was needed to conduct 24×7 surveillance of an individual, even in public.  Interestingly, when the police raided his house, the camera was pointed not at his front door, but rather at some sagebrush nearby.  Apparently, the judge noticed that fact as well..

The authorities want to keep information on Stingrays quiet.  Harris Corporation even requires cops to sign a non-disclosure agreement before they sell them one and recently the Baltimore cops dropped their charges against someone rather than let that information see the light of day.  My guess is that they don’t want the bad guys to understand how effective these devices are, but likely, you only catch stupid bad guys this way.  The smarter ones understand that cell phones, at least ones that are not burners, are like a homing beacon tied directly to you.

The Senate Judiciary committee is becoming more interested in these boxes, so I suspect it is a matter of time before we get more information.

What is clear is that law enforcement will push the boundaries as they try to do their jobs.  Recently, when the Sarasota police were going to be forced to turn over records on Stingray use under Florida public records laws, magically, the detective who was using them became a special deputy for the U.S. Marshal Service and the records were moved to a different location hundreds of miles away.  Legal experts think this technique will not hold up.

While there certainly is a balancing act between catching bad guys and suspect’s rights, it appears that vigilance is required to keep the good guys honest.  This is not the last act in this play.

Before you say that we should do whatever we can to put away bad guys, absent some form of independent review there is nothing to stop the operator of a Stingray from pointing it at you – just because he can.

Mitch

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