FBI Says Search Warrants Not Needed To Use "Stingrays" In Public Places

schwit1 writes The Federal Bureau of Investigation is taking the position that court warrants are not required when deploying cell-site simulators in public places. Nicknamed "stingrays," the devices are decoy cell towers that capture locations and identities of mobile phone users and can intercept calls and texts. The FBI made its position known during private briefings with staff members of Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Chuck Grassley (R-Iowa). In response, the two lawmakers wrote Attorney General Eric Holder and Homeland Security chief Jeh Johnson, maintaining they were "concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests" of Americans. According to the letter, which was released last week: "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."

Comments

Someone please aware me:

[Anonymous Coward]

How is this not, basically, wiretapping (for which a warrant would ordinarily be necessary)?

Re:Someone please aware me:

[KillaGouge]

Because when you are in a public place you have no right to the expectation of privacy. If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation. Depending on if your state and the state the other party is in are two or one party states it is a moot point.

Re:Someone please aware me:

[Anonymous Coward]

There are similar exceptions to wiretapping for passive monitoring of 900mhz/2.4ghz wireless phones. The specific terms of that exception is that you can not share anything you've heard with others. https://www.privacyrights.org/wireless-communications-voice-and-data-privacy#5

Note: I guess technically the exception is: if you don't tell anyone there's no way to prove that you've been monitoring with malicious intent unless you made a recording.

Re:Someone please aware me:

[TWX]

Weren't there laws that actually made the use of equipment that could listen to analog cell phone communications illegal?

Re:Someone please aware me:

[Anonymous Coward]

Because you're broadcasting electromagnetic radiation anyone with an antenna and a brain could detect?

Re: Someone please aware me:

[Anonymous Coward]

Good thing these devices know about walls so that they don't accidentally listen to anyone in a non-public space...

Re:Someone please aware me:

[MozeeToby]

There is a qualitative difference between any one conversation being overheard and every conversation being overheard. I may not have an expectation that something I say is private, but I do have an expectation that there isn't a database of everything I've ever said in public ever.

Re:Someone please aware me:

[fuzzyfuzzyfungus]

How is this not, basically, wiretapping (for which a warrant would ordinarily be necessary)?

I think that it's one part arrogance, as expected from the House of Hoover; pretty much a "John Marshall has made his decision: now let him enforce it!"; but way less pithy.

The other half is tortured arguments and logic-chopping legalism that hyperfocuses on means and wholly ignores outcomes. Well, yes, given the way electromagnetic radiation propagates, we can basically intercept all the calls, all the data, and a fuckton of location information; but our actual hardware won't be located on your property, so we don't need a warrant; and anyway, you 'consented' to share all those radio waves with your telco, so you don't have an expectation of privacy anyway!

It's an ugly; but fairly standard, mode of argument for those who wish to chip away at effective constitutional protections without being so...vulgar... as to simply repeal them. Roughly the same logic that has decreed that most email isn't really a 'person, papers, or effects'; because some guys who wrote with quill pens didn't explicitly say that "yes, this means even papers stored on your behalf in Google's datacenter".

Re:Someone please aware me:

[SecurityGuy]

I don't understand how it isn't exactly wiretapping. Perhaps that's what the judge will say. One can hope.

Re:Someone please aware me:

[CastrTroy]

But can they target which phones connect to their rogue cell phone tower? What if you are in a private residence next to where they have it deployed. Wouldn't every cell phone in the vicinity latch onto the rogue cell tower? If they don't need a warrant, then they could just set them up in really busy places and get a large number of cell phones to connect and start recording conversations.

Re:Someone please aware me:

[BarbaraHudson]

There's a qualitative difference between talking quietly on your phone in an area with nobody else near enough to overhear, and shouting into it like a maniac in a crowd. There definitely IS a reasonable expectation of privacy in the first case.

Re:Someone please aware me:

[SwashbucklingCowboy]

But if you're sitting in your car with the doors closed talking on that phone you do have an expectation of privacy. How in the hell would the device be able to distinguish between the two?

Re:Someone please aware me:

[quantaman]

Because when you are in a public place you have no right to the expectation of privacy. If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation. Depending on if your state and the state the other party is in are two or one party states it is a moot point.

So giving this the most charitable interpretation the closest metaphor is surveillance with a good directional mike. They'd also have the suspect under constant visual surveillance to make sure they were in a public place.

This would only cover the suspect's half of the conversation though, I don't care how public the place is, unless I have the volume completely cranked I expect the voice coming out of the phone to be private. I don't think it passes the smell test with texts either though, it's pretty easy for me to conceal my screen even in a public place.

Re:Someone please aware me:

[CanHasDIY]

No kidding - remember when phone booths were a thing? Maybe we need to bring those back.

Re:Someone please aware me:

[topology]

Because when you are in a public place you have no right to the expectation of privacy. If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation. Depending on if your state and the state the other party is in are two or one party states it is a moot point.

Unless the person is using speaker phone, the guy or gal on the other end of the line can't be heard. But a man-in-the-middle would hear the other person. As for texting, I do have an expectation of privacy as the viewing of the screen is typically limited to just me.

Re:Someone please aware me:

[mi]

Because when you are in a public place you have no right to the expectation of privacy.

The copper-cables running from my house cross plenty of public spaces. Still, tapping them requires (or used to require) a warrant.

If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation.

Even if we accept this reasoning, the FBI's claim, I am afraid, would cover a cell-phone user making a call from the privacy of his house too.

Re:Someone please aware me:

[SecurityGuy]

There was a recent decision that 24/7 camera surveillance of a suspect's house required a warrant even though it was somewhat equivalent to parking a police car in front of the house and watching.

There's an intuitive difference between the fact that a human being can hear you talking on the cell phone if they're nearby, and having a device that listens to every cell phone call AS IF it was a human being standing next to every person on both sides of every conversation within range. Courts are beginning to understand that.

Re:Someone please aware me:

[MobyDisk]

Because when you are in a public place you have no right to the expectation of privacy.

Does that mean that the FBI could legally wiretap a public pay phone without a warrant? That seems unlikely: being in a "public place" should not override wiretapping laws.

Re:Someone please aware me:

[mi]

because some guys who wrote with quill pens didn't explicitly say that "yes, this means even papers stored on your behalf in Google's datacenter"

This is a humanity-wide problem. For example, while a muezzin is prohibited by the Prophet from hiring somebody else to help call faithful to prayer, there is no prohibition from using electronic equipment to magnify one's voice: and most muezzins use microphones these days.

Re:Someone please aware me:

[stephanruby]

How is this not, basically, wiretapping (for which a warrant would ordinarily be necessary)?

It's not wiretapping. The FBI says so. Apparently, the FBI is saying that any private citizen can just set up their own "stingrays" to intercept phone calls as long as they're in public places, and the FBI won't prosecute (at least, not with wiretapping laws). This makes sense.

This makes as much sense as waterboarding without consent not being a crime.

Re:Someone please aware me:

[TheCarp]

> The copper-cables running from my house cross plenty of public spaces. Still, tapping them requires (or used to require) a warrant.

Are we sure about that? Perhaps the FBI would like to let us know what "exceptions" exist? Perhaps because the copper cables run over public spaces that makes for an exception in their book? They certainly wouldn't want to tell us unless they had to.

Re:Someone please aware me:

[g0bshiTe]

If I use my cell phone in my home and the Stingray is close enough then it infringes my expectation of privacy in my own home.

Re:Someone please aware me:

[cayenne8]

Because when you are in a public place you have no right to the expectation of privacy.

Well, these expectations or lack thereof...were basically thought of with respect to things humans can sense, through hearing and eyesight (visible and audible spectrum).

However, gathering info like this with digital communications, I think this is different and you should have expectations of privacy. Tracking you electronically is not something they should readily be able to do without a warrant. This is nothing but a big fishing trip for the FBI, and in the past it has been struck down as overly broad, as this should be too!!

Re:Someone please aware me:

[Bengie]

What I say in public may be considered "public", but what I hear on my phone is relatively private, I have an expectation that no one else being able to hear. Not to mention any other non-vocal forms of communication.

Re:Someone please aware me:

[fustakrakich]

There definitely IS a reasonable expectation of privacy in the first case.

That expectation can only bring disappointment. Always assume the worst. You will be backed up by precedence going all the way back to ancient times. Privacy gets no respect in the crowd, never did

Re:Someone please aware me:

[mi]

tapping them requires (or used to require) a warrant.

Are we sure about that?

Yes, we are sure.

They certainly wouldn't want to tell us unless they had to.

That's true. But using information thus obtained in court would be impossible — under the "fruits of the poisonous tree" doctrine. They would need to — and sometimes do — invent some other explanations as to how they learned, what they are presenting in court...

Re:Someone please aware me:

[DigitAl56K]

Because when you are in a public place you have no right to the expectation of privacy.

Yes you do. Stop repeating that without even thinking about it.

You are communicating via a device that is generally not observable to people surrounding you. You might be sending text messages, IM's, photos, for example. Nobody around you can see that normally. This is all supposed to go over the air with GSM encryption - your phone using the strongest it can negotiate - to your carrier, who you have a contract with to carry your information. Then the signals are supposed to be switched over the phone network where it can't normally be intercepted without a warrant, and your data communications are not normally intercepted either.

The Stingray is specifically designed to masquerade as your carrier so it can get in the middle - aka wiretapping. It tries to downgrade the encryption *so that it can wiretap* and people can intercept communications that would normally be hidden from them.

If your argument was in any way true (i.e. because you are in a public place you have no expectation of privacy because anyone can hear you anyway), then the police would not need a stingray because they are local to that public place and they should just be able to walk up to you as a target and listen in in person, right? Except apart from the very specific case where you're blabbering way too loudly on a voice call, that just isn't true.

The very design of the Stingray condemns it as a wiretapping device.

Re:Someone please aware me:

[Jason Levine]

This is interesting as Judaism has the reverse issue. There's no biblical prohibition against using electricity on Shabbat, but Orthodox Rabbis have decided that completing an electrical circuit is "work" -- which itself is prohibited - and thus using electricity is prohibited. (Conservative and Reform rabbis allow electricity use.) However, since non-Jews aren't held to this prohibition, Orthodox Jews can ask a non-Jew to perform an action (turn on a light, turn on the AC) that the Orthodox Jew himself wouldn't be allowed to do. Many times, it seems as though Orthodox rabbis take some new technology and try to deal with it by saying "This is like X which is prohibited in this manner" no matter how tenuous the comparison.

Re:Someone please aware me:

[jfengel]

Strictly, this is recording only the fact of a conversation, rather than the content. It's "envelope information", the kind of thing that would also be visible in public on a letter, recording timestamp, location, and addresses (though technically a letter doesn't require a return address the way a phone call does.) It's more akin to a record of everybody you've spoken to, rather than a record of everything you've said.

Not saying that there isn't still a qualitative difference, am I'm in no position to make a legal judgment. I'm just clarifying that they're not arguing for the right to actually record the conversation.

Re:Someone please aware me:

[mi]

completing an electrical circuit is "work" -- which itself is prohibited - and thus using electricity is prohibited

Yes, it is quite interesting — but you got this particular part wrong. Using electricity is not prohibited. Turning things on is — because making fire was disallowed. Orthodox Jews can ride elevators, for example — but they can't push buttons. For this reason, some elevators in Israel have a special "Shabbat-mode" — on Saturdays they can not be called, but simply run up and down stopping (and opening) on every floor. By themselves...

Re:Someone please aware me:

[operagost]

Rabbi, I realized that if flipping a switch is work, that turning my door handle must be. That's why I couldn't make it to synagogue. Oy vey, I was trapped!

Re:Someone please aware me:

[fuzzyfuzzyfungus]

Is the 'making fire' issue a fairly broad analogy, or a specific concern about contacts arcing as a switch opens or closes(sparks being fairly fire-like in general appearance)?

Re:Someone please aware me:

[lgw]

Because when you are in a public place you have no right to the expectation of privacy.

Yes you do. Stop repeating that without even thinking about it.

I think we need a Constitutional amendment. Something to the effect of "the people have an expectation of privacy in a public space". Put an end to this nonsense.

Re:Someone please aware me:

[sabri]

But using information thus obtained in court would be impossible

Two words:

Parallel Construction

Re:Someone please aware me:

[ZipK]

If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation.

So if I'm talking quietly, cupping my hand over the mouthpiece and/or making sure that I'm not close enough to others to bother them with my conversation, the stingray will magically leave me alone?

Re:Someone please aware me:

[Anonymous Coward]

"Not saying that there isn't still a qualitative difference, am I'm in no position to make a legal judgment. I'm just clarifying that they're not arguing for the right to actually record the conversation."

No, they won't argue for that until everyone's comfortable with the idea that they can legally record the fact that you've made the phone call. Baby steps people.

I'd say they should have to step back and do this test. "Do we have to get a warrant for this information if we didn't otherwise find a way to passively hack into the communications systems by tricking user cellphones that we're who they were intending to connect to?"

IE: If they didn't have these stingrays to fool people's devices, they would have to get this kind of information directly from the telecoms. Do they need a warrant to get that information from them? If so, then there shouldn't be a way for them to avoid it.

Re:Someone please aware me:

[ZipK]

Privacy gets no respect in the crowd, never did

Crowds and public spaces are not synonymous.

Re:Someone please aware me:

[Dragonslicer]

I had always thought it was the latter, but I've also heard the theory that when an electric light bulb was first presented for a rabbinic opinion, the fact that it emitted heat and light was the reason that it was classified as fire.

Re:Someone please aware me:

[sjames]

I have every expectation that nobody around me will overhear the other side of the conversation. I have every reasonable expectation that if I duck into a quiet space and speak quietly that nobody will overhear me. Certainly, if I go into a public restroom stall I have an expectation of privacy if I send a text holding my phone in my lap.

I'm betting the stingray set up in a park won't have a mechanism to exclude the provided public restroom from it's range.

Re:Someone please aware me:

[BarbaraHudson]

No kidding - remember when phone booths were a thing? Maybe we need to bring those back.

Hey, maybe we could re-market them as "The cone of silence" to tap into people's nostalgia for odd TV references :-)

Re:Someone please aware me:

[sjames]

It's better than the FBI's approach of claiming every little thing makse a communication completely novel and so unprotected. There is at least an effort to follow the spirit of the laws.

Re:Someone please aware me:

[meta-monkey]

Remember, they can only invade our privacy in situations where we do not have a reasonable expectation of privacy (or they have a warrant).

Now you would think "expectation" would be something I control. I expect my private phone conversation, including the identity of the person I'm calling, the duration of our call, and my location during the call, to be private, unless I'm announcing these things loudly within earshot of others. But is that reasonable?

A lot of laws have "reasonableness" language in them. Unintentional acts that result in injury are only consider negligent if a "reasonable" person could have foreseen the outcome. The language is kept intentionally vague so as to be interpreted by juries, or (reasonable) judges, and those interpretations can change to reflect the changing mores and customs of society. This keeps the law "descriptive," describing the way we already live, and protecting that way of life in law. This is the difference between English common law, the basis of western jurisprudence, as opposed to "prescriptive" laws, where the king makes laws to tell you how you will act, and off with your head if you don't fucking like it.

So, reasonableness is determined by the people, and the way they live. Now I bet if you took a poll and asked 100 random Americans, "do you expect phone calls you make in your car or in a secluded place to be private? Not listened in on, not tracked and recorded and monitored by the government without a warrant?" I'm willing to bet an awful lot of those people would say that yes, they expect their private conversation to be private. Since a large, large portion of citizens have that expectation, it seems pretty reasonable.

Haha, but no fuck that. We the FBI will tell you what to expect, and what is reasonable. And your opinion, citizen, is not welcome. Bet they'd even write it down for ya. Ahead of time. Almost as if they were pre...scribing the law...

Re:Someone please aware me:

[Anonymous Coward]

When, exactly, did the zeitgeist change from "state agents have to justify systematically invading my privacy by getting a warrant from a judge. It's only in horrible places run by Communists that the state claims a right to monitor everything you do, innocent or not" to "you have to justify why the state shouldn't be allowed to casually monitor every single thing you say or do outside of your house, which apparently surrounded by a magical aura of shielding?"

It's fucking disgusting. How do people not see America's nascesent security/police state is slowly turning into pretty much exactly what every red-blooded American despised about the Soviet Union?

Re:Someone please aware me:

[wirefarm]

Cool, then it's OK for me to set a few up.

Re:Someone please aware me:

[sconeu]

Someone please mod parent up.

Re:Someone please aware me:

[TheCarp]

True but, unlike you he actually used the words parallel construction and linked to the wiki article. Since those two words and what they mean really do need to be spread as far and wide as possible, and are evidence that the law really isn't, and the people who are most highly charged with following it (ie the people who enforce it themselevs) actually don't bother.

Its almost like, we don't really have a system of laws so much as a theater troupe who plays "legal system" for real stakes.

Re:Someone please aware me:

[fustakrakich]

The 'crowd', as in the madness thereof

I was speaking of the collective, which is kind of synonymous

Re:Someone please aware me:

[Anonymous Coward]

If the British had had a record of who every colonist had spoken to/knew and a remarkably little bit of mathematical theory, the leaders of the Revolution would've been hanged before they ever had the idea for it.

And this isn't like the NSA's massive illegal "record everything forever into our own private Google" shit, that's nothing but a 300x300 or so matrix of [X knows Y, true or false] of well-known colonials - the Wired article even has it downloadable for people's portable analytical engines. In fact Wired's article was explicitly written to knock down the "Oh, it's just harmless metadata" lie.

Re:Someone please aware me:

[Shoten]

How is this not, basically, wiretapping (for which a warrant would ordinarily be necessary)?

It's not wiretapping. The FBI says so. Apparently, the FBI is saying that any private citizen can just set up their own "stingrays" to intercept phone calls as long as they're in public places, and the FBI won't prosecute (at least, not with wiretapping laws). This makes sense.

This makes as much sense as waterboarding without consent not being a crime.

Oh, thank goodness it works that way...the entity that is subject to oversight can state that no oversight is needed. Cool!

Dear FBI: I don't need a permit to have a grenade launcher!

Re:Someone please aware me:

[mi]

True but, unlike you he actually used the words parallel construction and linked to the wiki article.

And it was a stupid thing to do. Because, parallel construction in itself is not necessarily about illegally obtained evidence — according to that very link, it is usually used to protect informants and other secrets.

Also, the link is explicitly about DEA using data gathered by the NSA (illegally) — not about FBI.

FBI might be doing something very similar on occasion, but, given the negative publicity of the term, they are likely to be calling it something else.

Thus, using — and raising awareness of — this particular term is not useful. We just need to be aware, that the law-enforcement agencies do this sort of thing — whatever the name they may be using for it.

The somewhat redeeming thing is, they do it not because they wish to invade our privacy, but out of sincere belief, the end (capturing criminals and preventing terrorism) justifies the means — and that privacy of millions is a price worth paying for lives of hundreds. I can, sort of, see their side of it, even if I disagree.

Re:Someone please aware me:

[Jason Levine]

I intentionally steered clear of the "making fire" argument specifically because I know that there is some disagreement as to whether or not this is the reason why electricity isn't allowed. Some call completing the circuit "building" and thus prohibited under that category of work.

Years ago, I was actually religious enough that I did this myself. Today, I've scaled this back to simply not doing anything work-related. (No computers, phone, etc.) It's also morphed from a 100% religious observance to about 25% religious/75% forcing myself to take a break and spend quality time with my family.

Re:Someone please aware me:

[blue9steel]

That would actually cause quite a few problems. I would like to see an explicit right to privacy as a well as a rule that prohibits bulk collection of data without specific cause and a warrant.

Re:Someone please aware me:

[meerling]

"Ummm.... It doesn't have wires... Just trust us, we know what's best for you. Oh, and you'd better go see your doctor about your blood sugar levels." replied the FBI.

Re:Someone please aware me:

[Anonymous Coward]

Did you miss this part:

  Nicknamed "stingrays," the devices are decoy cell towers that capture locations and identities of mobile phone users and can intercept calls and texts.

Re:Someone please aware me:

[twitnutttt]

Because when you are in a public place you have no right to the expectation of privacy. If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation. Depending on if your state and the state the other party is in are two or one party states it is a moot point.

B.S.!! They intercept BOTH sides of a conversation, which I would absolutely reasonable expect at least the OTHER side is private. ALSO, they intercept TEXT MESSAGES, which I absolutely don't expect people around me to be reading.

By their logic they should be able to deploy nano wave scanners and see through my clothing too since, heck, I'm in public, I have no expectation of privacy!!

Re:Someone please aware me:

[demonlapin]

The content of your call may have a reasonable expectation of privacy, but the fact of the call does not.

Re:Someone please aware me:

[demonlapin]

No, you don't, because just like with email you entrusted a third party to deliver an unencrypted message for you. Completely erases your "reasonable expectation of privacy". Welcome to the law.

Re:Someone please aware me:

[demonlapin]

"Reasonable expectation of privacy" is a legal term of art. Don't expect it to bear any relationship to how anyone would normally interpret the phrase. As a trivial example, you have no reasonable expectation of privacy in another person's home, even if they're not around.

Re:Someone please aware me:

[UnderCoverPenguin]

In the English language of the late 18th century, the 4th amendment to the US Constitution is an explicit right to privacy:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In the era, "effects" meant "possessions". Indeed, that meaning is sometimes still used, for example "personal effects".

Also, in that era, "papers" was the common term for documents, because documents were "stored" on paper, which, in turn, was often stored in filing boxes or cabinets. The fact that documents are now more often stored and sent electronically should not diminish or block them from 4th amendment protections.

As for bulk data collection, back then, they had a very limited - compared to now - concept of that. They did not (nor could they reasonably have) foreseen anything remotely like the what is possible now. But the 4th amendment is still applicable even though the wording is outdated.

(I will also mention the 9th amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.)

Human nature being what it is, people, including law enforcement, will, when it suits the purpose at hand, choose to narrow or widen their interpretation of the constitution (and other laws). Thus, lawyers will continue to endlessly argue over the meaning of each word, letter, punctuation mark, etc, of the constitution (and other laws).

Re:Someone please aware me:

[blue9steel]

In the era, "effects" meant "possessions". Indeed, that meaning is sometimes still used, for example "personal effects".

Also, in that era, "papers" was the common term for documents, because documents were "stored" on paper, which, in turn, was often stored in filing boxes or cabinets. The fact that documents are now more often stored and sent electronically should not diminish or block them from 4th amendment protections.

Privacy of my stuff is not the same as privacy of my person. While the court has ruled that there effectively exists a right to privacy, I'd prefer something a bit more concrete than mere precedence.

Re:Someone please aware me:

[sabri]

You dimwitted nincompoop! A mee-too moron!

Hello, random internet person, apologies if you feel offended. In no way was I trying to outsmart you, I was merely pointing out the obvious for the not-so-aware reader.

Re:Someone please aware me:

[Marful]

Because when you are in a public place you have no right to the expectation of privacy. If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation. Depending on if your state and the state the other party is in are two or one party states it is a moot point.

This is true, in a public place you have no expectation of privacy... But this fact is completely irrelevant because the methods the stingray devices use to gain the data are deceptive. And more importantly, have absolutely nothing to do with whether you are in a public place or not.

You could be inside your own home, a location afforded and protected by the highest level of what is deemed to be "private", and a stingray device could still gain access to your private data. Again: being in public, or not, has absolutely NOTHING to do with how and why a stingray device operates.

The stingray devices deceives your wireless device into believing they are connected to a legitimate cell tower when it is, in fact, not connected to a legitimate cell tower. Then your phone, believing it is connected to a legitimate cellular tower, pushes it's data like it would to the carrier's cell tower.

The issue then, is not one of a location based privacy nature (re: public/private), but one of whether or not such actions by police are considered fraudulent. Clearly, in order for the stingray device to work, some form of deceptive action must be taken by the device at the behest of the police. The question then becomes: is such using deception to trick a person into believing they are dealing with a legitimate cell tower service that they are paying for a criminal act?

The answer is yes. Deceiving someone and intercepting their communications without their explicit knowledge is in fact a federal criminal act. Specifically, it is the criminal act known as "Interception and disclosure of wire, oral, or electronic communications" colloquially referred to as wiretapping and defined in the following United States Federal Statute:

18 U.S. Code 2511 (link: http://www.law.cornell.edu/usc...)

(1) Except as otherwise specifically provided in this chapter any person who—

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when— (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States; (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

Re:Someone please aware me:

[weilawei]

That's how they work.

Re:Someone please aware me:

[UnderCoverPenguin]

That is the first listed in the amendment: to be secure in their persons . That is how late 18th century English speaking people referred to personal privacy. Again, a matter of language, which keeps lawyers on all sides of court cases arguing over the meaning.

Your comment does highlight the concerns of the various people who wrote the US Constitution and the Bill of Rights. On the one hand, some were afraid that not including rights would leave too much to interpretation. And others who were afraid that listing any rights would implicitly disparage/deny other rights that happened to not be listed. The compromise was to list some and state, via the 9th amendment, that the list was incomplete.

Re:Someone please aware me:

[currently_awake]

What about text messages? You can text people in public without anyone else being able to read your texts.

Re:Someone please aware me:

[sumdumass]

Most definately.

Katz v. United states says as much when the court in a 7-1 decision determined that wiretapping a public pay phone needed a warrant.

However, i would also argue that there are certain things someone might not even say if they did not have a reasonable expectation of privacy. Suppose you wanted to tell your best friend you got a STD or that you forgot to repott some income on your taxes, or you have considered leaving your wife for her sister or anything. These things might never be said if you did not have an expectatilon of privacy. Reasonable should be denied because cops government use technology to make you falsely think you have established that privacy.

Re:Someone please aware me:

[gl4ss]

because it's more like putting a fake postal box and then pretending that it's not fraud to put a fake postal box and look at the mail that goes through said postal box. ...these towers, they act as fake cell towers, yes? even if they didn't need a warrant, they would need a fucking FCC approval, no? why not? because they're the FBI? ...and furthermore, if no warrant is needed, if no fcc approval is needed, if no operator approval is needed - can I put up these towers? if it's all legal and no warrants or permissions needed, then surely why the hell not?

here's the simple rule of thumb: if they don't need a warrant I should be able to do the same thing without a warrant.

Re:Someone please aware me:

[BarbaraHudson]

Agreed. Let them get a warrant instead of going off wasting resources on fishing expeditions, which is what the "surveillance state" is quickly degenerating into.

Re:Someone please aware me:

[Euler]

Silly rabbit! :)
We were certain of our liberties as codified in law (mistakenly.) Now, we are not sure of anything. It is no longer paranoia, now there is precedence.

Re:Someone please aware me:

[theshowmecanuck]

Also, you have a contract with your cell phone service provider. You expect your calls and information to go through their towers, not some rogue FBI tower. This is just like wiretapping by inserting themselves into the line.

Re:Someone please aware me:

[TheCarp]

> Because, parallel construction in itself is not necessarily about illegally obtained evidence

Except it is a blatant attempt to hide the truth of where evidence is obtained from the court, which means it is about not allowing the court to make that determination based on the truth. So saying its not about illegally obtained evidence is.... not supported by anything but the claims of the very people who are perjuring themselves in court.

This particular term does deserve to have its awareness raised, and quite frankly, every person involved in it should, by all rights, be charged criminally. Their job is to make a case, not lie to the court.

Re:Someone please aware me:

[jfengel]

The summary and the Ars article are wrong. Or rather, they might well be capable of such things, but that's not what the FBI is arguing for in this case. If you click through to the original article that Ars is basing this on, they are not making a claim that it's legal to do so. They're claiming that the envelope information is legal for them to record.

Re:Someone please aware me:

[Slashjones]

The law is, unsurprisingly, wrong. And that whole "reasonable expectation of privacy" thing is just a bad idea, because all it means is that if the government infringes upon people's privacy enough, they can't 'reasonably' expect that they'll have privacy anymore. Privacy should be about ethics, not expectations.

Re:Someone please aware me:

[demonlapin]

The law is the law, right or wrong. You can rail against it night and day, but unless you can get 50%+1 of the legislators or judges to vote your way, your opinion isn't worth much.

Re:Someone please aware me:

[Slashjones]

The value of my opinion is subjective.

Re:Someone please aware me:

[TheRealLifeboy]

Strictly, this is recording only the fact of a conversation, rather than the content. It's "envelope information".

And you believe that? I suppose you also believe that your communication with Santa Claus is safe and unintercepted. Now, we know the Tooth Fairy is immune to interception, but not the other fairy tale creatures...

To believe that shadowy US government organisations that do things that are mostly invisible to the general public will stop at only looking at the mail envelope, rather than skimming the contents as well, is so crazy that I'd bet on meeting the Snowman in person as more likely.

Re:Someone please aware me:

[cwsumner]

I agree.
However, never expect privacy on any communications device, wired or not, unless you really trust the encryption. And most phones don't even have encryption.
Sometimes face to face is necessary...

Re:Someone please aware me:

[BarbaraHudson]

Face to face is the only way, and even that's not completely secure if you haven't met the person before (it could be someone else). But at some point, we have to just stop "giving a sh*t" over whether we're being spied on or not, because it's happening.

Yeah, but...

[msauve]

They do, however, require a license to transmit on those frequencies, which they do not have.

Re:Yeah, but...

[dbc]

Yes, they need a license. But how do you know they don't have one? The FCC has mechanisms for special licenses.

Re:Yeah, but...

[msauve]

"But how do you know they don't have one?"

Feel free to search the FCC ULS database. Come back when you find one. You won't, because much of that spectrum was "sold" to cell carriers for their exclusive use.

Re:Yeah, but...

[Kohath]

If they don't care about the 4th Amendment, why would they care about FCC licensing laws? Besides, what is the FCC going to do? Fine the FBI?

Re:Yeah, but...

[IronOxen]

You will not find any federal government agencies with licenses with the FCC. Contrary to what most people think, the FCC does not control spectrum allocation in the U.S., the National Telecommunications and information administration (NTIA) does. All federal government agencies , including the FCC, is allocated the spectrum they manage by NTIA.

Re:Yeah, but...

[msauve]

Federal government has different spectrum. Nothing you've said supports the FBI (or whatever gov't agency) transmitting on frequencies assigned for civilian cellular phone use.

Re:Yeah, but...

[speedlaw]

More likely, there is FCC approval, but it is classified. The FCC would not want to blow up the rest of the spectrum. Notice how unhappy they get when someone decides to use a cell jammer. There was one instance where a cell jammer was used by a driver, who "took out" a whole tower every day when he passed it. The FCC tracked him down and fined him. I'd guess Harris has a "type acceptance" for the radios.

Re:Yeah, but...

[msauve]

A good lawyer would get any evidence collected using illegal means quickly tossed. That's not to say the FBI aren't experts in parallel construction, though.

Re:Yeah, but...

[Agripa]

There's nothing wrong with parallel construction. If you did the crime, and a judge is convinced they would have gotten the evidence legally, you get convicted of the crime of which you are guilty. I don't have a problem with this. That's not what the 4th Amendment is for.

The problem with this is that because of how the exclusionary rule works, there is no remedy for violations of the 4th amendment where the evidence is not used. That makes all searches constitutional when parallel construction is used.

well its a good thing that...

[ganjadude]

The FBI doesnt get to make that decision, A Judge or congress will

Re:well its a good thing that...

[geekmux]

The FBI doesnt get to make that decision, A Judge or congress will

Wow. Does the Constitution or Bill of Rights still work in your area of the country?

I'd like to know where it's still valid. Seems in the last few years there's been a lot of Hope that Change would happen.

And it sure as hell did.

Re:well its a good thing that...

[Anonymous Coward]

Then the FBI will make the judge or congress realize the error of its ways.

OR they'll release the evidence they have manuf...collected regarding said figures activities.

Re:well its a good thing that...

[Anonymous Coward]

Wow. Does the Constitution or Bill of Rights still work in your area of the country?

Ten states and DC are completely within the Constitution free zone. The zone covers about 200 million people.

Re:well its a good thing that...

[davydagger]

The problem with the constitution is that its been abused since 1796 with the Alien and Sedition acts, and a few decades later with the removal of the Seminole indians from florida despite court order. When Abe Lincoln took office, he completely ignored it, and its been dead since then, and no one ever really brought it back.

The very concept that a piece of paper, no matter how just or good the words on it are, can protect you from an abusive government or anything else, is bogus. The US Constitution like many other things, is a fairy tale they tell you. It has no real bearing on US law.as practiced.

Re:well its a good thing that...

[lsllll]

I'm not sure if you're specifically referring to the US Constitution or the whole shebang, including all the amendments (and the bill of rights). We constantly see courts skirmishing around the first and fourth amendments. They go back and forth, so I wouldn't so hastily toss out the Constitution.

Re:well its a good thing that...

[bill_mcgonigle]

The FBI doesnt get to make that decision, A Judge or congress will

Yeah, a FISA judge who believes that metadata doesn't require a warrant, when metadata is itself surveillance, by definition.

Whatever - the sooner we admit to the police state and the smoldering remains of the Constitution, the sooner we can get on with fixing the society. Good experiment, this Natural Rights Republic, now it's time to learn from the results (and conclude that a government to protect rights is a logically inconsistent proposition).

Re:well its a good thing that...

[Bite The Pillow]

Justice takes time. It also takes standing, or the right to sue. This is a difficult and slow process.

But assuming that you can overcome the restrictions imposed by the Supreme Court's interpretation, then the Constitution still stands everywhere, and your dismissive comment is not in any way helpful. If you want to fight, or inspire fighting, or in any way object, then you just basically sent a great bug "fuck you don't try" message. Was that your intent?

What the FBI decides is essentially irrelevant, until you are persecuted and have standing. If you don't have standing, you were not injured by this decision. If you were, then you do, and you can object via the legal system. This is the way the Constitution was supposed to work. It is slow, but it works out eventually, and finally. And that is the way it is supposed to work.

Not necessarily on your timescale, and certainly not on the internet's timescale. And nowhere near the news cycle's timescale. As good as it would be for everyone concerned, it does not work that quickly.

Re:well its a good thing that...

[ganjadude]

I dont disagree with you in reality. then again im about 2 weeks away from supporting violent revolution lol

Re:well its a good thing that...

[davydagger]

I am talking about the whole shebang. Amendments 1-10 are part of the "original" constitution, because they where passed right after the constitution, and promised before its radification to prevent the "anti-federalists" from blocking it. But yes, the constitution is not relivant in law.

courts do whatever the fuck they want, and then the excutive branches does whatever it wants.

If Holder is concerned about the privacy issues...

[flu1d]

You know its got to be bad. I didn't know he was aware that Americans were allowed privacy.

Kind of like....

[TheCarp]

We engineer our space craft to come down within 15 inches of our chosen return point.... with an acceptable margin of the entire earth. It hits within the acceptable range every time!

Have they ever?

[nyet]

Has any law enforcement agency ever maintained that they need a warrant for anything?

Re:Have they ever?

[geekmux]

Has any law enforcement agency ever maintained that they need a warrant for anything?

Well, traditionally not the ones that want to have any of that evidence actually be accepted in a courtroom.

Unfortunately, old-fashioned traditions like due process are illegal now.

They've been automatically classified as obstructing justice in the war against terror, hence the now-accepted norm of shoving Rights up your ass sideways.

Re:Have they ever?

[retroworks]

Nor is it illegal for a police officer not to read someone their Miranda rights. It simply makes it harder to build and try a successful case.

While I may not like it, arguably if they listen to everyone, but only go after the two caveats (danger to public safety, fugitive), that listening in on everyone else is "no harm no foul".

I think many are missing the distinction between whether something is "admissable in court" (warrantless seach) vs. whether it's illegal to do the search. My understanding is that detectives can, and do, conduct warrantless searches, but know it may not be admissible in court, and could even vacate other evidence (fruit of the poisonous tree). But does any enforcement agency try to stop or arrest agents making illegal searches? I don't think so. That is what makes it a legislative inquiry - a law would have to be passed making the eavesdropping a crime, not just useless to prosecutors.

Re:Have they ever?

[fustakrakich]

I always thought that a cop who violates ones rights should share the jail cell. Until we put a price on it, nothing is going to change.

Re:Have they ever?

[Bite The Pillow]

Citation please. If you are correct, I need to re-evaluate some things.

And one link to one instance won't do, unless it is a supreme court ruling that sets the precedent for everyone.

Re:Have they ever?

[ToddInSF]

The problem with all that mess is you end up with parallel evidence lines being by the police created to secure convictions.

If that's the direction we're headed, game over. Nothing matters. Not any ideal of Liberty or any concept of freedom, much less justice.

Re:Have they ever?

[Agripa]

It's unconstitutional for them to do a search without a warrant or permission of the owner.

Since there is no remedy when they use parallel construction, it is not unconstitutional.

The devil is in the details...

[marciot]

So if I should happen to live next to a public place, and their signal penetrates my walls into my private residence, can I sue them for trespassing and for intercepting my calls in a place where I would have an expectation of privacy?

Of course not. *sigh*

Re:The devil is in the details...

[nehumanuscrede]

Absolutely not.

One of those devilish little details exempts them if they're trying to locate a fugitive. All they need do is make the claim Fugitive X is thought to be in area Y and they are completely off the hook.

Re:The devil is in the details...

[Anubis IV]

I used to live in south Florida (Boca Raton, about an hour north of Miami). The entire place is a tourist destination. Half of the population are the "snowbird" residents, who are basically just tourists from the north that stay there for the winter months. With the logic presented by the FBI, it sounds to me like they could get everything from Orlando down to the Florida Keys declared to be a tourist zone that is exempt from expectations of privacy.

Re:The devil is in the details...

[currently_awake]

Could you set up your own Stingray in a rich neighbourhood and then publish lists of who people call? It's just meta-data, from a public place, right? So fair game to anyone, without needing a warrant.

Re:The devil is in the details...

[Bite The Pillow]

Why the pessimism? I would think this has a really good chance of turning out in your favor.

It is well known that anyone making a call anywhere discloses information to a third party, so the third party doctrine applies. But the contents of that call, as far as I can tell, are considered private. It would be a difficult legal fight, and expensive.

The only question is, do you give up that easily? Or are you a patriot?

Criminals Don't Have Privacy Interests

[l0ungeb0y]

And it is well known that our Government now considered ALL CITIZENS as criminals who merely have not been convicted yet.

Re:Criminals Don't Have Privacy Interests

[serviscope_minor]

And well they might. The law is now so vast and complex that you're almost certainly a felon who hasn't been caught yet.

Re:Criminals Don't Have Privacy Interests

[Agripa]

The law is now so vast and complex that you're almost certainly a felon who hasn't been caught yet.

The law is so vast and complex, that law enforcement is not required to understand it when arresting you but you are expected to understand it because ignorance of the law is no excuse.

Don't these things violate FCC regulations ....

[Anonymous Coward]

Don't these things violate FCC regulations by causing harmful interference (to our privacy, and the wireless providers ability to serve their customers)? Do trival things like FCC regulations mean nothing ?!?!

Re:Don't these things violate FCC regulations ....

[fustakrakich]

Do trival things like FCC regulations mean nothing ?!?!

Maybe to Janet Jackson and Howard Stern's former employers, but they are a trivial part of doing business, and actually perform a sort of free advertizing service in the process.

no reasonable expectation of privacy

[fredrated]

on a phone call? These people are trash, they destroy our freedom for the sole purpose of making their job easier. Yep, the terrorists won by turning us against ourselves.

Re:no reasonable expectation of privacy

[fustakrakich]

Most people are in denial of who the 'terrorists' are. Terrorism is a top level function. It only gets physical with the grunts.

Re:no reasonable expectation of privacy

[Bite The Pillow]

Law enforcement could decide tomorrow that they don't need a warrant to stuff cacti in your butt. The first case involving someone treated thusly would be adjudicated as such.

The law allows for terrible abuses in this way, and you have to be harmed in order to raise a complaint.

It is a terrible system, but it is the best one I know. If there is a better one, then show me and I will gladly move there. Something more than a link to "Oh, Europe" would be helpful - something that guarantees that the kind of abuses you object to cannot happen.

Cannot happen, and do not happen, and will not happen - these are all different. If it cannot happen, I want to live there.

Where is the FCC?

[Anonymous Coward]

Interfering with the orderly operation of vital infrastructure would be a crime if done by an ordinary person.

Why can the the police get away with it, without any special permission.
 

The wrong debates.

[jellomizer]

There is a debates on More or less government control... That is the wrong question. The debate should be towards what actions will improve the freedom and liberty of the individuals.

I am not faulting the police for wanting such technology, it is there job to solve crimes, and any tool to help them do their job is good. However as a society, we need to stand up and say "We are willing to sacrifice safety for more liberty."

But right now we are no longer home of the Brave. Thus we are no longer becoming the land of the free.

Re:The wrong debates.

[gstoddart]

But right now we are no longer home of the Brave. Thus we are no longer becoming the land of the free.

Many of us suspect this has been true for a lot longer than people realize. The rot has been going on for a very long time.

If the FBI is openly saying the 4th amendment is meaningless, they've been ignoring it and the rest of the laws for a very long time.

As long as people accept "you have nothing to fear if you have nothing to hide", this will get worse.

Nobody gives a shit about their liberty, they want to know when American Idol is on, and when they can get the next iPhone.

9/11 just killed any last pretense of caring about the law and liberty. And that is spilling into the rest of the world, so much so that the US is more or less the enemy of freedom and liberty on the planet.

Re:The wrong debates.

[tipo159]

I get into the "Life in a Police State" meme as much as the next guy, but if you think that this stuff started after 9/11 or any other recent event, I suggest that you study more history of this country.

The FBI has been ignoring the 4th Amendment and using available technology to do so since the organization was created. Before that, the Feds would contract with detective agencies, like Pinkerton, that would often ignore the 4th Amendment (as well as others). Local law enforcement have been ignoring it and, when caught violating it, retroactively making up enough story (depending on how friendly the local judiciary is) to artificially demonstrate compliance for even longer.

The person who wrote "the rot started in 1787" is correct. People with authority often (usually?) lose sight of what they are defending and need to be reminded of it. This can take the form of new laws or lawsuits or civil action or something else.

But the real problem is that, on the whole, the people of this country only really care about the particular rights that they wish to exercise when they want to exercise them and otherwise don't give a damn (or, to be more polite about it, are too busy living their lives to be concerned).

Fraudulent Bureau of Investigation.

[koan]

“Wise men say nothing in dangerous times”

  Aesop

Re:Fraudulent Bureau of Investigation.

[Euler]

Doesn't work anymore. In the 20th century the 'wise men' (educated) were the first to be marched off... Then the 'undesirables', etc. They already were identified by the time the situation arose.
Not sure what the 21st century holds for us. But considering how much information is recorded about all of us going back who knows how long, it is probably too late already.

You will have to do more than just keep quiet, you will have to be 'useful' as well.

In other news, the FBI says

[Anonymous Coward]

Trials are unnecessary, we can just lock everybody up who we think might possibly have been suspicious at some point, and it'll all be for the best.

Heck, let's just go for broke, and make the FBI and the rest of the police the new rulers of the country, who needs elections? They ARE THE LAW!

well then, thats the solution.

[nimbius]

This is addressed to the plutocrats, so ill keep it short and sweet. I get that the cloistered elite arent to be concerned with this, but your cash cattle certainly care. If we keep going down this road, you can expect to lose everything. we will stop using your app stores, stop using your wireless towers entirely, and form small mesh networks as was the case recently in China. these networks in 20 or 30 years will grow into an encrypted tor mesh, from which you will realize no revenue outside of the occasional new "cell phone" you decide to belch forth. your films and music will never earn another cent. and in the short term i'll buy an inexpensive mp3 player and leave my phone sitting at home, turned off, as most of us should. This should be of grave concern as well, considering ubiquitous passive wireless scanning systems employed in some of the largest stores in the world would certainly become far less reliable without a willing and oblivious captive audience.

and most importantly you'll have created a new generation of hardened hackers and leakers who now believe in retribution, as freedom is clearly subject to arbitrary terms and conditions outside the realm of a government by, of, and for the people.

Re:well then, thats the solution.

[nehumanuscrede]

I think only the old-timers could go smartphone free ( since we lived a good portion of our life without one already ) but not the current generation. Take the smartphone away from a kiddo today and they act like an addict that's been denied their drug of choice.

I'm getting to the point where I can drop the phone completely. I already don't trust it, nor the apps that ride upon it. While they will likely deny it, you connect to anything that requires a password and it's likely your phone can record it. Bank info, wireless access point psk's, VPN info, your contact lists. Hell GPS will show where you go and where you've been. If they really take an interest in you they can always bring the mic or cameras online. Or use it as a backdoor into your home network ( if your network is configured like most are anyway. Most folks don't isolate wireless traffic from the main network. . . but you should :D )

While government intrusion into my personal life is unlikely, it's still a concern because it's not something we should put up with. What is of even greater interest to me is what happens when the happy-hacker / disgruntled or bribed employee type folks pull a Sony and get into telecom or provider systems. ( Apple, Samsung, AT&T, etc. etc. ) How much information gleaned about everyone's life via a smartphone sits in a database file on a server somewhere ?

How much security lies between those systems and the folks trying to get into them ? ( My bet is not as much as there should be. )

Today's smartphone is the greatest surveillance gift the government and / or LE community could have ever hoped to ask for. The best part is , unlike the old days, they don't even have to be all sneaky about it. Society is willing to stand in lines for days to get their hands on the latest and greatest versions.

Re:well then, thats the solution.

[Sassinak]

You are right, but sadly all it does is feed into the problem.. because those hackers and leakers can be anyone.. with "better tools".. it gives them the moral "excuse" to justify more tools like Stingray (regardless of the fact that as your pointed out they created the enemy and will continue to make more enemies).. its a vicious cycle that won't break because both sides believe they are 100% right and their actions are 100% justified.

Re:well then, thats the solution.

[pnutjam]

Isolating wireless traffic is overkill for most home users. Each machine should be able to protect itself. It's like the old, "the firewall blocks it" excuse. It's not good security, but it might be good security theater.

Re:well then, thats the solution.

[nehumanuscrede]

I agree, complete overkill actually.

But then most home users don't understand anything about anything when it comes to their home network either.

Since I understand the fact that any dual connected device can potentially be a backdoor and / or jump-server into my network, and since I have no say so in the design nor operational abilities of said devices ( other than not using them ), I resort to the only methods and techniques I know in order to minimize the possibility of outside access.

So I go the overkill route and isolate stuff. Wireless goes into this pvlan, Alarm into another, wired devices, gaming systems, etc.

Besides, it gives me something to do :D

Re:well then, thats the solution.

[pnutjam]

Well, of course it's fun! :D

If they don't need a warrant, can I use one too?

[gurps_npc]

If the FBI would get upset about a random citizen using said device, then what makes them think they don't need a warrant?

Exactly as expected in a police-state

[gweihir]

They can do things that drastically infringe on basic rights and freedoms without oversight and consequences. The police in all its forms becomes more and more like criminal gangs and grab every bit of power than they can get.

Hypocritical...

[Pliny]

Somehow I doubt they'd see it the same way if someone setup a rogue femtocell on the sidewalk outside an FBI office...

Re:

[zlives]

i guess i didn't realize that the devices could distinguish if you are on a public side walk vs on your private lawn/apt next to the sidewalk...

Re:If Holder is concerned about the privacy issues

[zlives]

just preparing for the next election cycle

My privates are private even when in public...

[Press2ToContinue]

Does this let a mall cop deploy an xray machine at the mall to see through pretty girls clothes, saying in public, clothes should not provide them with an expectation of privacy?

Re:My privates are private even when in public...

[Press2ToContinue]

Ah yes, giving up liberty for security truly -has- become the American Way. Forgive me.

Re:

[lsllll]

Just like the true Stingray can only live under water, these Stingray devices, I've heard, stop at the lawn. The CANNOT, by definition, trespass the space line between the sidewalk and the lawn, so you'd be safe if you were standing on the lawn. They can crawl over concrete, though. So they can go up your driveway and onto your porch, but the threshold into your house/apartment stops them dead in their tracks.

Blatant Violation of Civil Rights

[Froggels]

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.

In other words; anytime they damn well feel like it. So where is the outrage?

Re:in public places

[BlueStrat]

So if they tap a wire at the curb, it's a public place, and no warant is required?

So I guess it's OK for me to set up and run a Stingray-type device on private property near FBI/DoJ/DHS/TLA buildings and facilities and/or their individual personnels' home residences then, right?

Be careful what you wish for FBI/DoJ, you just may get it.

Strat

Radio waves are neither private nor public

[FredThompson]

This is a no-brainer. It is impossible to determine from a radio wave if the transmitter is in a private space or a public space. An office in an office building may or may not be legally private space. A vehicle is private space (as far as voice communication is concerned.)

This is the real key to killing this government spying. Holder's Federal Bureau of Stasi will lose this one real quick.

Expectations of privacy

[sjbe]

Because when you are in a public place you have no right to the expectation of privacy

Cellphone signals do not stop conveniently at the walls of your dwelling. How do you propose they sort out which signals are only coming from a public location? (Hint: they cannot)

Whether a communication goes over a physical wire or via the airwaves should have zero legal bearing regarding whether a warrant is needed. The police still need a warrant to tap my phone calls from work. Why should wireless be subject to different rules merely because it isn't tied to a specific physical location?

If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation.

And the police are welcome to listen in to what I say out loud in public. That doesn't mean they are automatically granted the right to hear both sides of the conversation. For that they need a warrant. The party on the other end of the conversation has rights too.

Re:Expectations of privacy

[fustakrakich]

Statistics show that people prefer bacon more than privacy. So until they vote 'respect for privacy' into office, you all can forget about it.

Re:Expectations of privacy

[Adriax]

Silly citizen. It only took a decade of engineering work with industry help to lift the veil of privacy on those conversations. You can't seriously expect privacy when circumventing it is so easy.

If you want privacy, don't use a method of communication so easily tapped into by multi-million dollar custom hardware and and 24x7 team of highly trained agents.
I mean, you might as well be yelling it for all to hear.

Re:Expectations of privacy

[operagost]

It seems like you could only prove the evidence inadmissible if, say, your GPS was turned on at the time and it pinpointed your location as being on private property.

Re:Expectations of privacy

[TheCarp]

Actually it has been implemented already, and there was even a slashdot article about it a few days ago:

http://yro.slashdot.org/story/...

That said, my phone doesn't support it and it seems few do, but, its a start and somebody is trying.

Re:Expectations of privacy

[wiredlogic]

It's already illegal for anyone to record cell phone conversations without a warrant. They are considered the same as a POTS phone as far as the law is concerned. This extended so far as to ban multi-band radios that could pick up analog cell phones so that you couldn't "wiretap" them. I had one that would catch snippets of conversations in the 80's. Newt Gingrich was stung by this once when he was caught using an analog phone in the 90's. Moreover, these stingray devices are actively impersonating a cell tower, running afoul of all manner of FCC regulations in the process.

Just because you have a badge doesn't mean you can break the law. There is no reason why law enforcement should have special treatment to record without a warrant when nobody else can. "All the power is reserved for the people" and all that jazz.

Out 'em: SnoopSnitch + Google maps

[dbc]

A StingRay detector for some rooted Androids exists: http://www.tomsguide.com/us/an...

So, I could see crowdsourcing StingRay mapping. Rooted Android + SnoopSnitch + IOIO board + interface application + Google maps + web site. If enough snoops were deployed, you could have a real time map of all StingRays in operation.

Re:Out 'em: SnoopSnitch + Google maps

[ItsJustAPseudonym]

Step 1: Deploy Stingray
Step 2: Deploy compromised SnoopSnitches
Step 3: (Government) business as usual.

Re:Out 'em: SnoopSnitch + Google maps

[ItsJustAPseudonym]

Actually, reverse 1 and 2.

P.S. Thanks for the link. SnoopSnitch seems pretty cool. I'm just trying to point out that the "Gov-hats" could compromise it.

Re:Out 'em: SnoopSnitch + Google maps

[fustakrakich]

Google will receive an NSL or equivalent to cripple such a thing and pull it from the play store if it becomes a hindrance, and of course they will comply.

Re:Out 'em: SnoopSnitch + Google maps

[swillden]

Google will receive an NSL or equivalent to cripple such a thing and pull it from the play store if it becomes a hindrance, and of course they will comply.

NSLs cannot command compliance with directives, only request information (and only metadata), so such an NSL would be illegal and Google would refuse it. Google has repeatedly demonstrated its willingness to fight unauthorized requests in court. Also, it's worth pointing out that Google does not have the ability to modify apps in the Play store.

(Disclaimer: I work for Google, but don't speak for Google. However, I think the above policy points are well-supported by Google's public statements. The technical point about app modification is easily demonstrated; modification would invalidate the developer's signature. Google could re-sign the modified version with its own keys, but that would be obvious to the developer.)

Re:

[aitikin]

Just like the true Stingray can only live under water, these Stingray devices, I've heard, stop at the lawn. The CANNOT, by definition, trespass the space line between the sidewalk and the lawn, so you'd be safe if you were standing on the lawn. They can crawl over concrete, though. So they can go up your driveway and onto your porch, but the threshold into your house/apartment stops them dead in their tracks.

^ Poe's law may apply

Because it's wireless.

[Anonymous Coward]

Here is how it was explained to me by a lawyer.

This also applies to cordless phones - you know the ones where the handset is wireless but you still have a landline.

The laws are outdated. Anything broadcasting a signal over the air doesn't require a warrant. Cops can intercept it at will. And so can you.

Re:Because it's wireless.

[spinkham]

No, you may not. Under what exact circumstances the police may or may not is more dicey, but not too relevant to this case.

Stingrays are not collecting voice data, but metadata. More like a pen register than a phone line tap, but legally those require

The real truth is we don't have any real legal precedent on whether these are legal with or without warrants or not, as they and their workings have been systematically hidden from the courts. The FBI has been confiscating both the hardware and all details about them whenever people discover local law enforcement has been using them, sometimes in defiance of local judicial rulings.

Asking the wrong question

[watermark]

The question shouldn't be if they can legally do it. The question should be why is this type of interception even possible without the cooperation of the phone company? If they can do it, so can the "bad guys".

Just another reason for encryption

[captnjohnny1618]

That third case ("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,") is the reason why we need things like black phone, silent circle, encrypted phone lines/connections, encrypted text messages, encrypted everything. The laws might be outdated, but the technology isn't.

They don't want to respect our privacy or the US Constitution? Let's make it too difficult and expensive for them to keep trying to mess with us.

Those no-warrant situations, so useful!

[klek]

(1) cases that pose an imminent danger to public safety,
So basically, ANY public gathering at all, whenever 2 or more are together, for any purpose.

(2) cases that involve a fugitive, or
Any *political* demonstration. Or any time the cops allege a "fugitive" is out and about.

(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."
Any time anyone is on the street with a mobe in their pocket.

Pretty straightforward!

defend yourself

[SinisterEVIL]

https://play.google.com/store/... https://opensource.srlabs.de/p...

Innocence and the Constitution

[fhic]

I've been summoned to serve for federal jury duty next month. I dearly hope I get one of these cases.

Actually, anything would be better than the financial fraud case I served on last time. We found the bastard guilty but the conviction was later thrown out by a judge.

FBI Says Search Warrants Not Needed To Use "Stingr

[sexconker]

FBI Wrong

FBI says ...

[CaptainDork]

Oh, the judicial branch of the FBI.

Federal government run amuck.

[Anonymous Coward]

We have a DOJ that ignores or unequally applies criminal law, natural law and the constitution.
We have judges who can be extremely activist and not rule properly.
We have a president who ignores the legislative branch when he doesn't get what he wants.
We have senators and representatives who take bribes, uh I mean campaign contributions.

What in the world could possibly go wrong?

Arduino+GSM shield

[chrysosphinx]

Those things are easily detectable with just an arduino with gsm shield, event without connecting to any network or even a sim card, just by dumping the id's and strength information to the terminal and little thinking about the numbers seen.

Violation US/EU and US/Canada Data Privacy Treaty

[WillAffleckUW]

The use of unwarranted electronic intercepts of data belonging to Canadian and EU citizens is a clear violation of both the US/EU Data Privacy Treaty and the US/Canada Data Privacy Treaty.

By our US Constitution, international treaties signed by the US Senate, as both of these were due to majority affirmation, have higher legal standing.

The FBI is lying.

So I can steal wireless alarm codes then.

[sugarmatic]

Because they are used in public. With no expectation of privacy.

Re:If Holder is concerned about the privacy issues

[x0ra]

Still, he needs to make King Obama look good if he wants a decent job post-election.

Re:If Holder is concerned about the privacy issues

[zlives]

its not about how did what, its about points to be spun. or having in your arsenal something to counter all the freedoms hating decisions made under the democratic party.

Personally i hold both parties responsible. IMHO the blame lies directly with the people and agencies that carry out these decisions/policies. Just following orders was never a good defense.

Public space?

[hawguy]

How do they limit the interceptions to a public space? What they are suggesting sounds a bit like saying that tapping into private phone lines is just fine as long as the telco box where they do the tapping is in a public space -- sure those lines may lead to a private residence, but if the signal can be tapped from a public space, then it's fair game.

Re:in public places

[fustakrakich]

a Stingray-type device...

is a weapon, and thus regulated. You are permitted your semi-automatic peashooters, but don't try to buy and use a 20mm Gatling gun without attracting unwanted attention.

Your only peaceful solution is your vote. If that is not respected, then I guess all bets are off. If the New York cops are any indication, you're in for a long fight.

Re:Assholes in restaurants

[Jason Levine]

I wouldn't blame them. People who use speakerphones and shout into them in public places are being rude, but aren't doing anything illegal.

Rudness =/= Illegal behavior

However, I'd consider listening in on phone conversations without a warrant because one of the parties may have been walking down a public street* to be illegal.

* Or in his car on a public street, or in a restaurant near a public street, or in a home/office near a public street, etc. All of which might not be in public places but apparently are "close enough" as far as the FBI is concerned.

Re:

[ThatsDrDangerToYou]

Just like the true Stingray can only live under water, these Stingray devices, I've heard, stop at the lawn. The CANNOT, by definition, trespass the space line between the sidewalk and the lawn, so you'd be safe if you were standing on the lawn. They can crawl over concrete, though. So they can go up your driveway and onto your porch, but the threshold into your house/apartment stops them dead in their tracks.

That's all well and good until the creepy violin music starts... Then all bets are off.

Re:Assholes in restaurants

[BronsCon]

You missed the tongue-in-cheek nature of my message. You also missed my clearly-stated point: How can you expect phone calls to be considered private when you can be heard through the whole restaurant and the person you're talking to can be heard 3 tables down?

The FBI is saying phone calls placed when in public have no expectation of privacy. I was, in a joking manner, pointing out where they get that notion.

Scanner is Blocked

[speedlaw]

Back in the analog days, after a few embarassing phone conversations were recorded in a few places in the world, any radio scanner sold in the USA had to block out the 800 mhz cell frequencies. Clearly, someone thought the general public listening in was a bad idea. Now, the conversations are in an encrypted spead spectrum format. A Casual listener cannot hear anything. A stingray is decrypting this proprietary format. I would argue a HUGE expectation of privacy when using a cell phone, despite it being a radio device. Clearly, you need to be very motivated, or very government, to hear it.....

Private citizens now free to monitorin public

[operagost]

I'm sure this means that, since police don't need warrants to perform monitoring of communications, that private citizens are free to do so. Thinking otherwise is illogical.

I don't think it's recording calls

[Mariner28]

Not only that, but I think everyone here is missing a big point : as far as I know, a stingray does not snoop on a phone conversation, since it would need to be connected to a phone company's telephone backhaul network to either a mobile switching office (think older switched telephony) or to a SIP gateway. Rather, a stingray acts as a stand-alone site which your phone inadvertently registers with, but if you attempt a call or send a text message you'll get a failure.

What it does is gather basic info about your phone - ESN & phone number, your carrier, and perhaps GPS coordinates (for E911). It can't snoop on your phone conversations because you can't place a call. Someone more up to date on 3G and 4G wireless networks can elaborate, My info is based on older 1G/2G cellular networks...

Re:I don't think it's recording calls

[IronOxen]

Actually, the leaked information on stingray and other similar IMSI capture devices say they can snoop on the communications by becoming the most powerful cell in the area which cell phones will attach to and then basically proxying all calls to a legitimate tower. A true man-in-the-middle attack. Then, although 3G and 4G offer sufficient cryptographic protection from eavesdropping, that stronger encryption can be downgraded to the insecure A5/1 algorithm or completely disabled by forcing a mobile device into 2G mode. There is a lot of info on these devices collected at the Android IMSI-Catcher Detector (AIMSICD) project page on github. https://secupwn.github.io/Andr...

Re:I don't think it's recording calls

[Mariner28]

So, if they are truly "proxying", then a stingray seen as a client device when relaying to a legitimate wireless company cell tower, so the wireless network doesn't know they're not talking directly to the client - other than possibly seeing some latency introduced. So the only way for the wireless company to know that something is fishy is to compare RF triangulation location data to reported GPS location data and note the discrepancy. Thanks for the link!

Re:I don't think it's recording calls

[currently_awake]

If they don't decrypt the call, then they can't tell who you call. For a stingray to get meta-data from cell phones it must be able to recover your voice call. A stingray connects to your phone, decrypts everything (including voice), then passes everything on to a real cell phone tower for delivery. It's entirely up to the maker (or the police) what data they take.

Re:Violation US/EU and US/Canada Data Privacy Trea

[fustakrakich]

The FBI is lying.

And?

In case nobody has noticed, liars are highly rewarded. In fact, I'm thinking of becoming one myself. The opportunities look fantastic!

FBI says ...

[PPH]

... something that suits them. Then there's a court case. Eventually, parallel construction woun't stand up to cross examination and they will have to cough up the Stingray data*. They'll either drop the case or make sure it is being heard by a judge for whom the FBI has some dirt on file.

*I've always wondered about the risks of parallel construction. When law enforcement makes up stories, they are risking geting caught in a lie under oath. Even if that is revealed and they offer to drop charges, a judge with some balls can still charge them with contempt. That this doesn't happen and LE keeps playing their game indicates to me that they have dirt on most of the judges they bring cases before.

Re:

[d34thm0nk3y]

Just like the true Stingray can only live under water, these Stingray devices, I've heard, stop at the lawn. The CANNOT, by definition, trespass the space line between the sidewalk and the lawn, so you'd be safe if you were standing on the lawn. They can crawl over concrete, though. So they can go up your driveway and onto your porch, but the threshold into your house/apartment stops them dead in their tracks.

This is true, but can be misleading. See, the FBI uses Soccer out-of-bounds rules. So, it's not over the line until the whole-of-the-signal is over the-whole-of-the-line. Unfortunately, due to the wave-form nature of the signal, this means the surveillance is only actually illegal after they have turned the device off.

Nazi's run the USA & Intelligence Apparatus

[Anonymous Coward]

They have since project paperclip, when we allowed without any repercussions Nazi's to occupy the highest levels of government.

Yes, America is ran by Nazi's, which explains our police state and extreme national socialism.

Facts.

Re:Nazi's run the USA & Intelligence Apparatus

[KamikazeSquid]

Nazi is literally shorthand for "National Socialism," or "Nationalsozialismus" in German.

Re:in public places

[MooseTick]

I'd like to see someone set one of these up outside the FBI's office somewhere and stream the data to the web. Since there are no expectations of privacy, all should be ok.

Stingrays for Everyone!

[Sloppy]

If the cops can do it without getting any exceptional permissions, then it must not be a crime for private citizens to do it, either. Right? Right? (Why is everyone looking at me like I just said something amazingly naive? And WTF is with all the Blade Runner "little people" quotes? I saw that movie and don't remember that many midgets.)

Re:in public places

[BlueStrat]

a Stingray-type device...

is a weapon, and thus regulated

A weapon? Really? Please cite the laws/regulations which classify it as a weapon.

don't try to buy and use a 20mm Gatling gun without attracting unwanted attention.

A Gatling gun? No, probably not. A BOFORS 40mm auto-cannon? Sure! Perfectly legal with the proper forms.

https://www.youtube.com/watch?...

If the New York cops are any indication, you're in for a long fight.

If the feces ever truly hits the oscillating rotary air circulation device, any police left that did not take their families and escape to the boonies somewhere would be overwhelmed and decimated in the first few days.

All the infrastructure that makes an effective modern police force possible is run and/or supplied with matériel by the very people and their families the police would be attacking. Does the government have facilities to house, feed, and supply all the necessities of life for every cop and his family, or do you think under such circumstances that they would be safe living among the people they're attacking?

How many cops would simply no longer report for duty if the SHTF? What happens when their food, fuel, & ammo runs out, when the necessary infrastructure to resupply them no longer exists? If the struggle lasts more than a small handful of days, defeat for the government is assured, as the supplies and infrastructure to support/supply the remains of the government would no longer exist.

I'm sure that Russia or China would be happy to help the US government by nuking major population centers at their request. WMDs would be the only way the US government could win a true widespread domestic rebellion. Of course, it would be an almost textbook Pyhrric victory. They'd have very little left to rule over, and that's assuming Russia or China doesn't decide to step in and take over.

Strat

Seriously now

[reboot246]

This is not the FBI's call. Only a court can decide if they have that power. Since when do we let law enforcement make up the rules?

Of course the way courts have been going against us the last few years, I don't see them restraining the FBI from doing anything it wants to do.

Enjoy your freedoms while they last. They won't be around much longer.

Stop and frisk?

[matbury]

Does this sound like stop and frisk to anyone? But more like going to a place and stopping and frisking everyone there and without probable cause and searching not just your pockets but your conversations with people who aren't there and without them knowing that it's happened? Looks like we need more secure phone systems. How about requiring that cell towers have signed encryption keys? How easy would it be for the cops to force telecoms to hand over the keys?

Detection?

[John Jorsett]

Couldn't one write a program to detect Stingray presence by having a database of all possible cell tower IDs and matching the ID of the one to which you're connecting against that list? Since the Stingray relays your intercepted call to a real cell tower it presumably doesn't spoof a real ID. Now that I think about it, I guess in order to prevent the Stingray just using an ID for a cell tower that's out of range but real, you'd have to add in knowledge of your geolocation so as to exclude distant towers.

Re:Detection?

[Agripa]

Couldn't one write a program to detect Stingray presence by having a database of all possible cell tower IDs and matching the ID of the one to which you're connecting against that list?

Sure this could be done and public key encryption is just the thing needed for authentication of this kind. But since the phone companies work closely with law enforcement, they will not do it. They have nothing to gain from it.

The best which can be done is to use a third part application to tunnel through intermediates to the destination. It means adding another layer of complexity but it would be one that the telephone companies and law enforcement do not control.

Re:in public places

[BlueStrat]

ITAR, Category XI, 7(b).

You're welcome.

Not so fast there, A.C.

ITAR is an export control treaty.

As long as nobody tries to export one (or detailed plans for making one) ITAR does not apply.

Strat

Unique Legal Interpretations about Smart Phones

[herbierobinson]

They might actually be right... It is basically a radio transmission.

If you care, encrypt...

On another note. Smart phones are computers that are connected to the Internet; so, wouldn't the Computer Fraud and Abuse Act apply to them (and the use of a stringray to access them)?

I call BS

[FreedomFirstThenPeac]

The ACLU says

Stingrays, also known as "cell site simulators" or "IMSI catchers," are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information. When used to track a suspect's cell phone, they also gather information about the phones of countless bystanders who happen to be nearby.

So, I think the Stingray is used to track who and where, very similar to having a beat cop standing on the corner who recognizes you and notes that you just walked by. All the discussion here about wiretapping is just FUD.