The FBI is going to remarkable lengths to hide information about its surveillance program that intercepts calls and texts with equipment called Stingrays.
If you've never heard of Stingrays, that's what the FBI wants. They are stealth devices used by local and federal law enforcement all over the US to gather location data and intercept information from people's phones. The agency has been notoriously tight-lipped about the sketchy practice; there is only one recorded instance where an FBI official has gone on record discussing Stingray programs, this video of FBI director James Comey from last October, which was recently pointed out by Motherboard.
Blaming the "Bad Guys"
The explanation for the secrecy is rich:
"I don't want to say too much about that, because I don't want the bad guys to know how we might be able to find them. So it's one of the reasons that we ask local authorities who are working with us and using our equipment not to talk about it. It's not cause I got something to hide form good people. I have lots to hide from bad people."
Comey's decision to frame the FBI's reluctance to discuss stingrays as a way to stop "bad guys" is a simplistic platitude designed to appeal to that part inside each of us that really loves NCIS, constitutional rights be damned. As much as I know in my heart that Olivia Benson would be my friend, I'm not falling for it. Neither should you: It's also just not true. It's also a troubling grab for impunity that tramples privacy.
The FBI, naturally, claims that hiding any news about Stingray use is necessary to do its job of catching killers and pedophiles. The agency has sent memos to that effect to local police, like this missive circulating in the Seattle Police Department:
It is important for us to keep this sophisticated technique confidential. In fact, RCW 9.73.260 requires the pleadings (and subsequent technique) to be filed under seal until further ordered by the court. Publically discussing the technique is considered a substantial threat to the interests of effective law enforcement, to public safety, and, depending on the case,to victims or witnesses. By their very nature, authority to use the tools (pings and tracking) must remain covert to be effective. Public disclosure of the technique could render this investigative tool useless
Now, of course the FBI and local law enforcement should not have to openly dissect ongoing investigations using Stingrays.
But wanting the FBI to investigate and solve federal crimes does not mean you have to want to give the FBI immunity from all interrogation about its general methodology, or that you support giving government agencies carte blanche to ignore the Fourth Amendment. And there is good reason to be worried about just that.
The FBI so badly wants to keep information about Stingrays under lock and key it pressures local law enforcement to send notice whenever anyone tries to use the Freedom of Information Act to learn more about the Harris Corporation, the company that makes Stingray devices.
The Stingray-powered programs are likely sending signals, tracking and picking up location data on people's phones inside their homes, without a warrant. That is, at the very least, questionable in terms of the Fourth Amendment. Plus, even though the Stingrays aren't combing through the content of phone calls, they are picking up serial numbers and other identifying information, which looks a lot like a dragnet, as the ACLU's staff attorney Nathan Wessler told me.
Wessler also acknowledged that there's compelling reason for secrecy when an investigation is still open. But what we should have a right to know are basic details about how often Stingrays and other devices are used, and what kind of legal oversight exists when the government is using them. In addition, we need to know whether there are protections for innocent bystanders' data.
"Those are the kinds of basic details that are necessary for us as a society to decide whether the government is obeying the law and whether there need to be stricter protections in place," Wessler said.
Crucially, these are not questions that jeopardise quests to hunt down murderers and kidnappers. These are questions that answer to reasonable concerns about the constitutionality of the program.
"There are ways to be transparent without sacrificing the abilities of law enforcement to conduct lawful surveillance. But so far the FBI has been unwilling to address the extent or even the authority for Stingray use," Electronic Privacy Information Center senior council Alan Butler told me via email.
It's not like Stingrays and similar technology have been rendered less effective just because people know about them. "There is also plenty of publicly available information about how these devices work, so it is unclear at this point how additional transparency from the FBI could possibly harm law enforcement efforts," Butler said.
In 2013, for instance, court documents in a case against identify thief Daniel David Rigmaiden revealed an at-the-time unprecedented amount of information about Stingrays and how Verizon worked with law enforcement to use surveillance tools to catch Rigmaiden.
There is no evidence that the release of this information resulted in other criminal suspects somehow extrapolating ways to escape surveillance.
"The only way to avoid a Stingray is to basically carry no cell phone around, or pony up big bucks for secure devices like the Cryptophone," Electronic Frontier Foundation senior staff attorney Hanni Fakhoury told me. In other words, it's disingenuous to say releasing data about closed cases that highlights the privacy considerations and frequency of Stingray programs would have any effect on using Stingrays to nab "bad guys," unless "bad guys" decided, upon hearing about how frequently Stingrays were deployed, that they would cease to carry a cell phone altogether.
Who Gets Permission to Use Stingrays?
Concern about the privacy problems that widespread, unchecked stingray use creates isn't limited to groups like the EFF, EPIC, and ACLU, and writers like me. Members of the Senate, who have gained access to more information about how these stingray programs operate through briefings, are also worried. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and staffer Sen. Chuck Grassley (R-Iowa) wrote a letter to Attorney General Eric Holder and Homeland Security chief Jeh Johnson to explain their concerns about the FBI's position on stingrays.
We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests.
Senator Ed Markey (D-Ma.) has also written a letter expressing concern about use of this kind of tech, asking for more details about a program using Stingray-like devices called dirtboxes hidden in aeroplanes.
There is some progress being made here. Judges in Charlotte, North Carolina have begun "more closely scrutinising surveillance requests and asking when officers planned to use a StingRay," thanks to reporting about the programs, according to the Charlotte Observer. That's just one of many places where law enforcement use these devices, but it highlights that media attention is causing judges to rethink overly broad permissions.
For courts in places like Florida, Massachusetts, and New Jersey, where police are required by law to obtain search warrants for cellular location data, that the FBI is trying to obfuscate the process surrounding its likely warrantless deployment of Stingrays may be an indication that the agency knows its habits are legally dubious.
The public has access to information about how wiretapping works, and the processes law enforcement go through in order to wiretap, in a substantial amount of detail. This does not make criminal suspects less likely to be wiretapped.
Ultimately, all the public wants to know is how, and how often, the government is given permission to track people using Stingrays. Knowing the answer to those questions isn't going to impede the tool from working.