Federal agents will no longer use 'Stingray' cellphone trackers without warrants

Erin Kelly | USA TODAY

WASHINGTON — Immigration, Secret Service, and Homeland Security investigators must now obtain search warrants before using "Stingray" trackers that reveal the locations of scores of cellphone users, a Department of Homeland Security official told a House panel Wednesday.

The new policy comes in response to growing criticism from members of Congress and civil liberties groups that law enforcement agencies have been violating Americans' constitutional rights against unreasonable searches and seizures by secretly using Stingray technology without warrants.

The devices mimic cellphone towers, tricking phones within a certain radius to connect to and feed data to police about users' approximate locations. Law enforcement agents say Stingrays are key to tracking down criminals and finding kidnap victims, but the devices also sweep up data from innocent Americans in the process. The Justice Department announced a similar policy change last month, saying that its agencies — including the FBI and Drug Enforcement Administration — must obtain search warrants "supported by probable cause" to use the technology.

The new policies do not apply to local and state agencies that use Stingrays, even though the devices are often purchased with money from federal grants, DHS Assistant Secretary Seth Stodder told members of the House Oversight and Government Reform Subcommittee on Information Technology.

However, the policies do govern local agencies when they use Stingrays while working on cases with DHS or Justice Department agencies. "We believe the new policy draws the right balance," Stodder said.

Subcommittee Chairman Will Hurd, R-Texas, and ranking member Ted Lieu, D-Calif., said they will look at introducing legislation that would codify the new DHS and Justice Department policies into law so that they cannot be scrapped by future agency heads.

Lieu also said the new policies "could and should go further." He pointed out that they do not apply to federal intelligence agencies such as the CIA and National Security Agency.

Sen. Patrick Leahy, D-Vt., the senior Democrat on the Senate Judiciary Committee, welcomed the announcement Wednesday but said it does not go far enough to protect the privacy of innocent Americans. Leahy and Judiciary Chairman Chuck Grassley, R-Iowa, have been calling on DHS to establish a "default warrant requirement" for all of its agencies seeking to use Stingray technology.

"The Department of Homeland Security’s new policy on cell-site simulators is a positive first step in responding to the very serious privacy implications posed by cell phone tracking technology, but it raises additional questions that must be answered," Leahy said in a statement. "I am disappointed that DHS has included the same problematic exception to the warrant requirement that is in the Justice Department’s policy...We must ensure stronger protections for the privacy rights of innocent Americans who are not the targets of an investigation.”

Both DHS and the Justice Department have adopted policies that provide two exceptions to the search warrant requirement for using Stingrays.

The first exception is "exigent circumstances" in which law enforcement officers must act immediately to protect human life, avert serious injury, prevent the imminent destruction of evidence, or engage in the "hot pursuit" of a fleeing felon.

The search warrant requirement also would be waived in "exceptional circumstances" such as when the Secret Service needs to act quickly to protect the president from a potential threat, Stodder said.

When seeking a court order to use Stingray technology, federal agents must disclose "appropriately and accurately" the underlying purpose and activities for which the warrant will be used, he said. Privacy advocates have complained that law enforcement agencies are so secretive about their use of Stingrays that they often don't tell judges that they plan to use them when they seek court authority to conduct surveillance.

Both Stodder and Principal Deputy Assistant Attorney General Elana Tyrangiel said the type of cellphone tracking devices they use do not allow their agents to capture emails, texts, phone calls or other content from cellphones.