Little-known surveillance tool raises concerns by judges, privacy activists

By Ellen Nakashima,

Federal investigators in Northern California routinely used a sophisticated surveillance system to scoop up data from cellphones and other wireless devices in an effort to track criminal suspects — but failed to detail the practice to judges authorizing the probes.
The practice was disclosed Wednesday in documents obtained under the Freedom of Information Act by the American Civil Liberties Union of Northern California — in a glimpse into a technology that federal agents rarely discuss publicly.

Latest from National Security

U.S. filmmakers subjected to years of cyberattacks blamed on China

Ellen Nakashima

A film crew making a documentary on Tibet was subjected to years of cyber harassment, delaying the project.

U.S. Army veteran charged after fighting in Syria with al-Qaeda affiliate

Sari Horwitz

Army veteran Eric Harroun boasted on the Internet and in interviews about fighting the Syrian government.

U.S. taking serious note of N. Korea’s ‘provocative’ threats, Hagel says

Ernesto Londoño

Defense secretary spoke hours after military sent nuclear-capable B-2 bombers for training drill in S. Korea.

Study: Iraq, Afghan war costs to top $4 trillion

Ernesto Londoño

Long-term costs of the Iraq and Afghan wars could reach $6 trillion, according to a new Harvard study.

Syrian conflict’s impact is felt in Iraq

Ernesto Londoño

Officials in Baghdad express alarm as fighting spills across border, threatening to spark sectarian battles.

• Contrasting lives: Syrians caught in the middle

The investigations used a device known as a StingRay, which simulates a cellphone tower and enables agents to collect the serial numbers of individual cellphones and then locate them. Although law enforcement officials can employ StingRays and similar devices to locate suspects, privacy groups and some judges have raised concerns that the technology is so invasive — in some cases effectively penetrating the walls of homes — that its use should require a warrant.
The issues, judges and activists say, are twofold: whether federal agents are informing courts when seeking permission to monitor suspects, and whether they are providing enough evidence to justify the use of a tool that sweeps up data not only from a suspect’s wireless device but also from those of bystanders in the vicinity.
In Northern California, according to the newly disclosed documents, judges expressed concerns about the invasive nature of the technology.
“It has recently come to my attention that many agents are still using [StingRay] technology in the field although the [surveillance] application does not make that explicit,” Miranda Kane, then chief of the criminal division of the Northern California U.S. attorney’s office, said in a May 2011 e-mail obtained by the ACLU.
As a result of that, she wrote, “effective immediately, all . . . applications and proposed orders must be reviewed by your line supervisor before they are submitted to a magistrate judge.”
The Justice Department has generally maintained that a warrant based on probable cause is not needed to use a “cell-site simulator” because the government is not employing them to intercept conversations, former officials said. But some judges around the country have disagreed and have insisted investigators first obtain a warrant.
“It’s unsettled territory,” said one U.S. law enforcement official, who spoke on the condition of anonymity because he was not authorized to speak for the record.
In a statement, Christopher Allen, a spokesman for the FBI, said the bureau advises field offices to “work closely with the relevant U.S. Attorney’s Office to adhere to the legal requirements” of their respective districts.
One of the problems is there is “scant law” addressing the issue of cell-site simulators, said Brian L. Owsley, a federal magistrate judge in the Southern District of Texas, who in June wrote a rare public ruling on the issue. He denied an application to use a StingRay, in large part because he felt the investigating agent failed to explain the technology or how it would be used to gather the target’s cellphone number.