Law enforcement agencies must obtain warrants in order to set up cell site simulators, equipment that siphon and analyze cell phone activity, stated a memorandum from Homeland Security.
Known as "stingrays," cell site simulators act like cell phone towers and they take note of any device that tries to connect to them. Law enforcement agencies use stingrays to track cell phones and, ultimately, the people who carry them.
Facing criticism from privacy advocates and civil liberties group, Homeland security has, in a memorandum, declared that law enforcement agencies must obtain warrants to use stingrays.
Alejandro Mayorkas, deputy secretary for the US Department of Homeland Security, sent the memorandum out to the heads of Immigration and Customs Enforcement, the Secret Service, Customs and Border Protection, the Coast Guard, the Transportation Security Administration and Federal Protective Service.
As is the case with any other tool used by law enforcement, Homeland Security "must use cell-site simulators in a manner that is consistent with the requirements and protections of the Constitution," stated [pdf] the letter. And that includes the complying with the Fourth Amendment.
"Moreover, any information resulting from the use of cell-site simulators must be handled in a way that is consistent with the array of applicable statutes, regulations, and policies that guide law enforcement in how it may and may not collect, retain, and disclose data," states the letter.
Any information obtained through the use of stingrays must be handled in a manner consistent with all applicable statures, rules and policies that direct law enforcement how it "not collect, retain, and disclose data," the letter states.
"While the Department has, in the past, appropriately obtained authorization to use a cell-site simulator by seeking an order pursuant to the Pen Register Statute, as a matter of policy, law enforcement Components must now obtain a search warrant supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure (or applicable state equivalent), except as provided below."
Still, Homeland Security has special provision that allows it to sidestep warrants to get what it wants when the conditions are dire enough. The exceptions to all of this are exigent and exceptional circumstances, as provided for by the Fourth Amendment and Pen Register Statute.
While this new policy is "a positive step" in response "very serious privacy implications" surrounding stingrays, this raises new questions and those must be answered too, stated Sen. Patrick Leahy (D-Vt.).
"I am disappointed that DHS has included the same problematic exception to the warrant requirement that is in the Justice Department's policy," said Leahy. "We must ensure stronger protections for the privacy rights of innocent Americans who are not the targets of an investigation."