In recent meetings with two senators' staff, the Federal Bureau of Investigation (FBI) clarified its thoughts on stingray use and said court warrants aren't needed to deploy the devices in public spaces.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. and Sen. Chuck Grassley, R-Iowa, penned a letter last week pressing Attorney General Eric Holder and Secretary of Homeland Security Jeh Johnson to elaborate on the FBI's polices regarding the surveillance devices. The letter explains that both senators had their staff meet with FBI Director James Comey to determine how the agency uses the cell-site simulators, and during those discussions, the staff members determined that the FBI changed its policy concerning legal policies. Grassley's office said in a comment to SCMagazine.com that it believes the FBI's policies were changed in August 2014.
Without going into the full scope of the program, the senators explain that the FBI's policy requires a search warrant to use a stingray, unless the case poses “an imminent danger to public safety,” involves a fugitive, or in cases where “the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.”
Hanni Fakhoury, senior staff attorney at the Electronic Frontier Foundation (EFF), said in a Tuesday interview with SCMagazine.com that while the policy itself might not be particularly new, the fact that Leahy and Grassley are directly asking for answers could indicate the start of more public transparency surrounding the devices' use.
“We're seeing a glimmer of acknowledgement and public discussion of these things, where previously it had not been the case,” he said.
The senators' letter specifically asks for clarification on the number of times the FBI has used a stingray device since the policy became effective, and in how many of those instances a search warrant or other legal process authorized its use. The letter also asks about the retention and destruction policy of the collected information.
When considering privacy interests of civilians whose information is swept up along with a specific target's, the senators write: “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.”
Grassley's office said in a statement that these questions are the primary reasons he and Leahy wrote their letter. He, "wants to learn exactly how the devices are being used and explore to what extent the policies governing their use are sufficient to protect the privacy of third parties who aren't the target," his office said in a emailed statement.
When asked to comment on the senators' requests, the Department of Justice (DOJ), via an email correspondence with SCMagazine.com, said that it was in the process of "reviewing the letter."
Multiple local cases have sprung up this year to try and get more information about how police departments team up with the FBI to use stingrays. In one recent case, California nonprofit First Amendment Coalition sued the San Diego Police Department to get public records released on the force's stingray use.