By Jennifer Valentino-DeVries
A judge in Texas is raising questions about whether investigators are giving courts enough details on technological tools that let them get data on all the cellphones in an area, including those of innocent people.
In two cases, Magistrate Judge Brian Owsley rejected federal requests to allow the warrantless use of “stingrays” and “cell tower dumps,” two different tools that are used for cellphone tracking. The judge said the government should apply for warrants in the cases, but the attorneys had instead applied for lesser court orders.
Among the judge’s biggest concerns: that the agents and U.S. attorneys making the requests didn’t provide details on how the tools worked or would be used — and even seemed to have trouble explaining the technology.
“Without such an understanding, they cannot appreciate the constitutional implications of their requests,” Magistrate Judge Brian Owsley wrote in an order last month, adding the government was essentially asking him to allow “a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment.”
The Department of Justice said it was reviewing the Texas decisions, which came in cases involving drug trafficking and an unspecified crime in which the suspect took the victim’s cellphone when he left the scene.
Last month’s ruling involves requests for “cell tower dumps” – information on all the cellphones in range of a given tower for a certain period. Judge Owsley said that, among other things, there was “no discussion about what the government intends to do with all of the data related to innocent people.”
An earlier Texas opinion, also by Judge Owsley, denied a request for the warrantless use of a so-called “stingray,” a portable device that acts as a fake cell tower and can gather data on nearby cellphones or locate a single phone even if it isn’t making a call. Stingray equipment can be carried by hand or mounted on vehicles or even drones.
It’s rare for such technology to be mentioned in public cases. Requests for court orders allowing use of the tools are typically made under seal.
But a separate case in Arizona also raises questions about the amount of information judges need to make decisions about the technology. In that case, which The Wall Street Journal uncovered last year, federal agents used a stingray to locate a broadband card, a device that lets a computer connect to the Internet through a cellphone network. Prosecutors say the card, which was in an apartment, was being used as part of a large tax-fraud scheme.
Civil liberties groups are now raising questions about the government’s arguments in the case, and in particular the court orders the agents got before using the stingray.
The Justice Department says it got a warrant to use the device. One of the orders – which were unsealed recently after a request by the American Civil Liberties Union – indeed includes a finding of “probable cause,” the standard for search warrants that is typically defined as reasonable belief, based on factual evidence, that a crime has been committed.
But the order doesn’t describe a stingray and doesn’t order the federal agents to do anything; instead, it is directed at the cellphone service provider, ordering the company to provide “information, facilities and technical assistance” to help agents locate the broadband card.
The U.S. attorneys in the case argue that the orders were “standard,” indicating that judges approving them know what is being requested.
But the ACLU and the Electronic Frontier Foundation filed a “friend of the court” brief in the case Friday arguing that the vague language rendered the warrant invalid.
“The government withheld information that it was using a stingray, how it works at all and that it affects third parties,” said Linda Lye, an ACLU attorney. “This is the sort of information a judge has to know in order to issue a warrant.”
Why write an application for a court order that doesn’t make everything crystal clear? There are several possible reasons.
For one, cell tower dumps and stingrays are considered sensitive law enforcement tools, and the government has been wary of disclosing too much information about them.
Another issue is that laws on electronic tracking were written before these tools were in use. The government argues that, if the technology isn’t being used to capture the content of a call, it falls into a category that doesn’t require a full search warrant.
But the new tools don’t match up precisely with earlier definitions and can gather more data than the other technology could – meaning the standard applications don’t necessarily provide a complete picture of the technology.
“With more information, the magistrate might have imposed protections and limitations,” Ms. Lye said. “Under the Constitution that’s for the court to decide.”
In the Texas cases, Judge Owsley held hearings to determine what devices were being used. Ultimately, he wrote that stingrays and cell tower dumps did not fall within the categories of tools that Congress has said can be used without a warrant.
According to Judge Owsley’s order, the U.S. attorney in the stingray case said the application was based on a standard model approved by the Department of Justice and indicated he would give the judge more examples of law supporting the application. But that memo, Judge Owsley writes, was never provided to the court.
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