ID Theft Case Uncovers|New Snooping Gizmo

PHOENIX (CN) - The federal government's use of a "stingray" device to track down a suspected ID thief has become an issue in the man's 73-count indictment.

Daniel Rigmaiden was arrested and federally charged with 35 counts of wire fraud, 35 counts of identity theft, two counts of mail fraud, and one count of unauthorized computer access. Federal investigators used a "stingray" to trace Rigmaiden's card to an apartment he was renting under an alias.

A stingray simulates a cell phone tower to pinpoint a suspect's location and listen in on conversations.

The tool is controversial because it picks up "information from all devices on the same network in a given area and send signals into the homes, bags, or pockets of the suspect and third parties alike," the ACLU said in an October 2012 amicus brief.

In government emails the ACLU uncovered through a FOIA request, a prosecutor in the Northern District of California wrote that federal agents were already using stingrays in the field, routinely, without disclosing it to federal judges when asking to use the device.

An ACLU attorney wrote in a declaration last week: "As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement's WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual's location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit."

A pen register device can track calls and locations, but can't pick up conversations.

In the underlying case, the United States claimed Daniel David Rigmaiden is "The Hacker," man who "stole hundreds of identities, compromised numerous innocent victims' computers, compromised numerous other innocent victims' financial affairs, filed more than 1,200 fraudulent tax returns with the Internal Revenue Service and laundered hundreds of thousands of dollars through co-conspirators' bank accounts."

Rigmaiden was arrested in August 2008 and a "plethora of evidence" was found in his apartment and on his computer, the government says.

Rigmaiden's attorneys filed a motion to suppress evidence the government found by using the stingray to pinpoint his location. The ACLU and the Electronic Frontier Foundation filed an amicus brief supporting his position.

"The government cannot obtain judicial approval for a search using sophisticated, uniquely invasive technology that it never explained to the magistrate," the amicus brief states.

The application for a search warrant filed with the judge failed to "apprise the magistrate that it intended to use a stingray, what the device is, and how it works, [and] it prevented the judge from exercising his constitutional function of ensuring that warrants are not overly intrusive and all aspects of the search are supported by probable cause," according to the amicus brief.

It adds: "The Application and Affidavit indicated only that the government sought to obtain information from Verizon, not that the government sought to engage in its own search of Mr. Rigmaiden's home. The Application provides no explanation of a stingray. The Affidavit states only '[t]he mobile tracking equipment ultimately generate[s] a signal that fixes the geographic position' of the aircard, but did not provide any explanation whatsoever of what the mobile tracking equipment was and how it 'ultimately generate[s]' that signal."

In its response to the motion to suppress, Uncle Sam wrote that there was no "intentional misconduct" by agents who "were using a relatively new technology, and they faced a lack of legal precedent regarding the proper form of a warrant to obtain the location information they sought."

Judge David Campbell is expected to rule the Rigmaiden's motions in the next few weeks.

Meanwhile in Washington on Friday, a federal judge told the FBI that it cannot delay releasing information on StingRay, as demanded under the Freedom of Information Act by the Electronic Privacy Information Center (EPIC).

Follow @jamierossCNS

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