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

Posted by samzenpus on from the all-the-better-to-hear-you-with dept.

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."

20 of 303 comments (clear)

  1. Someone please aware me: by Anonymous Coward · · Score: 5, Interesting

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

    1. Re:Someone please aware me: by MozeeToby · · Score: 5, Interesting

      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.

    2. Re:Someone please aware me: by BarbaraHudson · · Score: 5, Insightful

      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.

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
    3. Re:Someone please aware me: by mi · · Score: 5, Insightful

      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.

      --
      In Soviet Washington the swamp drains you.
    4. Re:Someone please aware me: by SecurityGuy · · Score: 5, Insightful

      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.

    5. Re:Someone please aware me: by stephanruby · · Score: 4, Interesting

      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.

    6. Re:Someone please aware me: by DigitAl56K · · Score: 5, Insightful

      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.

  2. Yeah, but... by msauve · · Score: 5, Insightful

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

    --
    "National Security is the chief cause of national insecurity." - Celine's First Law
    1. Re:Yeah, but... by Kohath · · Score: 4, Insightful

      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?

  3. well its a good thing that... by ganjadude · · Score: 4, Informative

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

    --
    have you seen my sig? there are many others like it but none that are the same
    1. Re:well its a good thing that... by geekmux · · Score: 4, Insightful

      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.

  4. The devil is in the details... by marciot · · Score: 5, Insightful

    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*

  5. Re:Have they ever? by geekmux · · Score: 4, Interesting

    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.

  6. Re:The wrong debates. by gstoddart · · Score: 4, Insightful

    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.

    --
    Lost at C:>. Found at C.
  7. Re: by zlives · · Score: 5, Insightful

    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...

  8. Re: by lsllll · · Score: 5, Funny

    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.

    --
    Is that a roll of dimes in your pocket or are you happy to see me?
  9. Re:in public places by BlueStrat · · Score: 4, Informative

    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

    --
    Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
  10. Expectations of privacy by sjbe · · Score: 5, Informative

    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.

  11. Out 'em: SnoopSnitch + Google maps by dbc · · Score: 5, Interesting

    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.

  12. Re:Have they ever? by retroworks · · Score: 4, Insightful

    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.

    --
    Gently reply