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According to government audits, the U.S. Secret Service and Immigration and Customs Enforcement (ICE) do not comply with laws and official policies regarding the use of cell site simulators.
A cell site simulator (CSS), also known as a stingray or IMSI catcher, is a device that acts as a decoy cell tower. They are used by law enforcement, intelligence agencies, etc. to intercept metadata and communications and to triangulate a phone’s location. Basically, your handset connects to a nearby tower and thinks it belongs to the phone company, but it’s actually a temporary mast put up by the federal government to snoop on devices within range.
For years, these devices have drawn criticism from civil rights groups and lawmakers who claim they violate Fourth Amendment protections against unjustified searches and seizures. The government claims to use only this type of kit in line with existing rules and restrictions, but that doesn’t appear to be the case.
The Office of the Inspector General (OIG) of the Department of Homeland Security (DHS) has investigated CSS deployments by the Secret Service and ICE and has issued a “Secret Service and ICE HSI [Homeland Security Investigations] When using CSS during investigations involving immediate situations, we may not always comply with federal law and CSS policy.”
OIG Audit Report [PDF] It was also found that “ICE HSI did not comply with the department’s privacy policy and applicable federal privacy laws when using CSS.”
The audit was originally conducted to see how each agency complied with its policies on cell phone surveillance and commercial location sharing databases, but the DHS OIG now separates the two. I am dealing with The Phone Monitoring Report offers six recommendations to help government agencies comply with their legal and policy obligations. Worryingly, however, statistics have been compiled regarding the number of surveys using CSS devices in 2020 and 2021.
Government investigators should obtain court orders to at least use pen registers (devices that record incoming and outgoing phone numbers when calls are made), except in emergency situations, so-called time bomb scenarios. has become But as the OIG report points out, the two organizations often failed to do so.
EFF policy analyst Matthew Guariguria said in a blog post on Thursday, “The fact that government agencies are using these devices without the greatest regard for the privacy and rights of the individuals around them is astounding. “The federal government, especially agencies such as HSI and ICE, have a questionable and troublesome relationship with the excessive collection of personal data about individuals.”
Guariglia argues that the OIG should publish statistical data to help the public better understand how often CSS devices play a role in research.
we make the rules, we break the rules
In October 2015, then DHS Deputy Commissioner and now DHS Commissioner Alejandro Mayorkas issued a policy memorandum. [PDF] The agency said, “You must use cell site simulators in a manner consistent with the requirements and protections of the Constitution, including the Fourth Amendment, and applicable statutory authorities, including the Pen Registration Act.”
By 2017, the Secret Service and ICE each had policies incorporating the DHS Directive.
Department of Justice says [PDF] While in the past “permission was obtained to use cell site simulators by seeking an order under the Pen Registration Act,” law enforcement agencies now view it as a matter of policy, supported by probable cause, and under the rules of the Federal Criminal Procedure Rules. Obtain a search warrant issued pursuant to Section 41 (or applicable state equivalent regulations). “
However, there are various exceptions where no warrant is required and CSS expansion is governed by pen register rules. Exceptions include “necessity to protect life or avoid serious injury, prevent imminent destruction of evidence, intense pursuit of a fugitive felon, or expulsion from court by a suspect or convicted fugitive.” escape prevention”. There is also an exception if the law does not require a warrant and obtaining one is impractical.
Given this legal discrepancy, it’s not always clear whether CSS deployment was legal. In the 2017 decision Prince Jones vs USAan appeals court found that “the government violated the Fourth Amendment when it deployed cell site simulators.” [plaintiff Prince Jones] without first obtaining a warrant based on probable cause.” And the following year, the U.S. Supreme Court ruled 5 to 4. USA vs. Carpenter The warrantless search and seizure of cellsite data violated the Fourth Amendment.
Legislators have recently tried to make CSS usage clearer. In 2021, U.S. Senator Ron Wyden (D-OR) and a bipartisan group of other members of Congress introduced a bill called the Cell-Site Simulator Warrant Act to obtain a warrant to deploy CSS devices. obliged the government to do so.
“Current federal, state, and local policies regulating stingrays are confusing, inconsistent, and open the door to law enforcement abuse and unconstrained and invasive surveillance,” said Government Observatory. Project (POGO) said in support of the bill.
The bill never passed the committee.
Freddy Martinez, senior researcher at POGO, said: register Since Carpenter’s decision, most jurisdictions have required a warrant of some sort, he said in a telephone interview. It shows that there is still a lot of confusion, he said.
“This report really speaks to an unclear legal issue,” he said. “If Congress passed a law that said you had to get a warrant to use this equipment, it would be easy.”
Martinez also noted that the report points to problems with federal authorities’ reliance on local partners to handle the necessary paperwork. “They are not doing the necessary paperwork and are putting the case in jeopardy.®
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