WASHINGTON (CN) – Members of a U.S. House Committee expressed concern Wednesday about new policies requiring warrants for use of cellphone spying software in federal investigations.
The new policies require any law enforcement agency under the purview of the Department of Justice or the Department of Homeland Security to get a warrant before using a StingRay, or cell-site simulator device, but carve out a few exceptions for exigent or exceptional circumstances.
Some members of the House Oversight and Government Reform Committee felt the exceptions are overly broad. Some worried about the potential for the cell-site simulator devices, also known as StingRays, to scoop up data as pictures, text messages and emails. Witnesses from the Department of Justice and the Department of Homeland Security assured the committee that the devices cannot collect data from cellphones because of how they are configured.
“The cell-site simulators used by DHS do not collect the content of any communications,” said Seth Stodder, of Homeland Security’s Threat Prevention and Security Policy program. “No data, no emails, no text messages, no voice communications: no content.”
The Justice Department requires that cell-site simulators be specifically configured not to collect data, Deputy Assistant Attorney General Elana Tyrangiel told the committee.
It’s “not an on and off switch” that someone can flip on a whim, Tyrangiel said: The manufacturers program the software to preclude data collection.
Stodder said that Homeland Security’s devices never collected data, even before the policy change.
Tyrangiel said she would need to get back to the committee about the Justice Department’s previous policy on data collection.
The small devices work by mimicking cellphone tower signals and tricking cellphones into sending their unique signals to the devices. This provides a general location, not a precise geolocation, Stodder said. The witnesses said their agencies use them infrequently, mostly to locate kidnappers, drug and human traffickers, fugitives, and in the case of Homeland Security, to protect the president.
The American Civil Liberties Union believes that even with a warrant, using the devices violates the Fourth Amendment, because the devices perform general searches. The ACLU says the devices can be configured to capture voice and data communications, contrary to the testimony of the witnesses.
The government witnesses told the committee that exceptional cases executed without a warrant will require approval from multiple executive-level officials at both agencies, Homeland Security and Justice.
The Justice Department’s new policy will require the agency to track all use of the devices, which will be subject to internal audits, Tyrangiel said.
She did not say the tracked data would be made publicly available, and could not say if Justice Department officials would be punished for failing to comply with the policy.
But Tyrangiel said the Justice Department hopes its policy will serve as a model for local and state law enforcement agencies, which are not subject to the new policies that require a warrant.
Local and state law enforcement agencies can purchase the devices without Justice Department approval, and can use federal grant money to buy them, Stodder said.
Tyrangiel said she does not know whether the Justice Department provides the devices to local and state law enforcement agencies.
The ACLU says that 56 law enforcement agencies in 22 states and the District of Columbia use the devices. But it says that number is likely an underestimate, because of the secrecy surrounding the purchase and use of the devices.
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