Stingray surveillance sparks privacy concerns in Congress

Erin Kelly | USA TODAY

WASHINGTON — Members of Congress are increasingly trying to rein in a secretive federal law enforcement program that uses devices known as Stingrays to capture cellphone data from unsuspecting Americans.

"They are spying on law-abiding citizens as we speak," said Rep. Darrell Issa, R-Calif., who recently won House approval of a measure to end the program.

The box-shaped Stingray devices are the size of small suitcases, cost about $400,000 to buy and operate, and are usually attached to the cars of federal, state or local law enforcement agents. They mimic cellphone towers, tricking phones within a certain radius to connect to and feed data to police about users' locations, text messages, calls and emails.

At least a half-dozen federal agencies — including the FBI, the Drug Enforcement Administration, and Immigration and Customs Enforcement — use the technology, which can penetrate the walls of a home, apartment complex or office.

Police say the technology — which can also be attached to planes — helps them catch criminals by tracking their movements and actions. But critics complain that it violates the constitutional rights of innocent citizens whose cellphone data is also seized, often without a warrant.

At least 53 law enforcement agencies in 21 states also use Stingrays or similar devices, according to research by the American Civil Liberties Union. Local police typically buy the devices with grants from the federal government and sign agreements with the FBI not to disclose their use, said ACLU attorney Nathan Wessler.

A June 2014 investigation by USA TODAY and Gannett newspapers found that an increasing number of local and state police agencies were deploying Stingrays and other technology to secretly collect cellphone data from suspected criminals and law-abiding Americans not suspected of any wrongdoing.

"It's become clear how staggeringly widespread the use of this technology is," Wessler said. "We've been heartened to see that some members of Congress are taking the privacy concerns quite seriously."

The House this summer passed, by voice vote, a Justice Department spending bill that included Issa's amendment to bar funding for the use of Stingrays without a warrant. Issa said he won't stop there, in part because the Senate is unlikely to pass that measure .

"I will use additional opportunities to get it done," Issa told USA TODAY. "Right now, law enforcement won't even tell us how many Stingrays they have. The only way to protect the American people is to change the law."

Sen. Ron Wyden, D-Ore., and Rep. Jason Chaffetz, R-Utah, also are targeting the Stingray program in a broader bill called the GPS Act. The legislation would require law enforcement agents to obtain warrants before tracking Americans' locations by using Stingray-type devices or tapping into cellphones, laptops, or GPS navigation systems.

"I don't see how you can use a Stingray without it raising very substantial privacy issues," Wyden told USA TODAY. "I want police to be able to track dangerous individuals and their locations, but it ought to be done with court oversight under the Fourth Amendment."

The FBI has said it has a policy of obtaining warrants before using Stingray devices, although it has broad exceptions, including one that allows the technology to be used in public places where the agency believes people shouldn't have an expectation of privacy.

“It’s how we find killers, it’s how we find kidnappers, it’s how we find drug dealers, it’s how we find missing children, it’s how we find pedophiles," FBI Director James Comey told reporters in Charlotte. last fall. "It’s work you want us to be able to do.”

Chaffetz is also using his position as chairman of the House Oversight and Government Reform Committee to gather information as part of an investigation into the use of stingrays, said his spokesman, M.J. Henshaw.

At the same time, Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, and Sen. Patrick Leahy of Vermont, the senior Democrat on the panel, have been pressing the Department of Justice for answers about Stingray practices and policies. Sen. Bill Nelson, R-Fla., has also called on the Federal Communications Commission to review how the devices are used.

A spokesman for the Department of Justice said the agency is reviewing its policies for the use of Stingray devices. He said he didn't know when the review would be done.

"With regards to this technology, the Department of Justice is in the process of examining its policies to ensure they reflect our continued commitment to conducting our vital missions while according appropriate respect for privacy and civil liberties," said spokesman Patrick Rodenbush.

While the Justice Department reviews its policies, states have begun passing their own laws to ban state and local police from using Stingrays without a warrant.

Washington Gov. Jay Inslee signed a ban in May after legislation was passed with overwhelming bipartisan support in the state Legislature. In addition to requiring police to obtain a warrant before using Stingray devices, the law says police must quickly delete any data collected on people who were not targets of a criminal investigation.

Similar laws have been passed in Virginia and Utah and are being considered in California, New York and Texas.

"The American people are looking for a balance between security and liberty," Issa said. "After 9/11, we moved too far towards security. We need to move back toward liberty."

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