DOJ’s New “Stingray” Policy Offers Protections, Limitations

iStock_000066456711_SmallLast year, the U.S. Supreme Court decided that police officers generally need warrants to search the cellphones of people they arrest. Earlier this summer, a federal court disagreed with some of its counterparts by holding that the government must typically get a warrant to inspect someone’s past cellphone location information. Now, in the latest example of the law scrambling to keep up with mobile phone technology, the Department of Justice (DOJ) has announced a policy on cell tracking devices.

The policy, unveiled last week, generally requires that officers get warrants before using “stingrays,” and that they let judges know when they intend to use the equipment.

Stingrays are suitcase-sized devices that mimic cell towers. By tricking cellphones into connecting with them, they reveal the phones’ whereabouts. But these trackers, which are strong enough to pass through walls and can interfere with calls, don’t connect with just one phone—they link up with all phones in the area. And they can grab not only location information, but also data like texts and emails. (The DOJ says the technology federal agencies use won’t capture this kind of material.)

Added Protection

The DOJ policy mandates that authorities regularly delete data they collect through stingrays. For instance, agents must erase it once they locate a suspect’s phone. If they don’t locate the phone, they must delete all data they’ve gathered at least once a day. But they’re actually supposed to hang on to some data, namely, the kind that could help prove a suspect’s innocence.

Exceptions—and Limitations

Like any rule, the DOJ policy has exceptions. First, officers may use stingrays without warrants in “exigent circumstances,” as where someone’s life is in immediate danger or someone is about to destroy evidence. Second, they can skip warrant requests in the face of the more ambiguous “exceptional circumstances.” These are situations “where the law does not require a search warrant and circumstances make obtaining a search warrant impracticable.” (DOJ Press Release.)

Newsweek reports that an example of “exceptional circumstances” is the FBI’s use of stingrays without warrants in public places, where the agency considers folks to lack reasonable expectations of privacy. The DOJ is quick to remind, however, that to invoke the exception, obtaining a warrant must be “impracticable.” Plus, the department notes that agents claiming exceptional circumstances will have to get both a court order and approval from agency higher-ups. But many contend that this kind of court order is remarkably easy to obtain; a warrant, on the other hand, demands the higher showing of probable cause.

Perhaps the biggest “exception” to the fresh stingray approach is really a limitation—it’s the fact that the policy doesn’t reach state or local law enforcement (though some states do require warrants for stingray use.) So, while federal bodies like the FBI, the Drug Enforcement Agency, and the Marshals Service might have to abide by these new rules for investigations within the U.S., your local police department won’t. And that’s no trivial distinction: The Washington Post reports that at least 53 agencies at the state or local level have bought stingrays.


Recent word from IRS Field attorneys suggests that improper disclosures on a gift tax return equates to an indefinite period of limitations, rather than the usual three years.  Failure of a taxpayer to properly disclose gifts (transfer of interests in two partnerships) to his daughter, including the identity of one of the partnerships, and failure to provide an adequate description of the valuation methodology tripped up the taxpayer in question.

A transfer will be considered adequately disclosed only when:

  • The transferred property is described and any consideration received by the transferor is disclosed;
  • IRS is apprised of the identity of, and any relationship between, the transferor and each transferee;
  • The tax identification number of any property transferred in trust is disclosed, as well as a brief description of the trust terms is provided;
  • A detailed description of the method used to determine the fair market value of property transferred is properly disclosed; and
  • A statement describing any position taken that is contrary to any proposed, temporary or final Treasury regulation or revenue ruling is attached.


Folks who may still be pondering what they did in their 2011 Federal income tax return, and whether it was right or not, or maybe even questionable, though now looking like there’s room for interpretation in their favor, had better get on the ball.

The statute of limitations on the 2011 tax year (for folks who extended their returns that year until October 15, 2012) will expire come this October 15, 2015.  So if you think you may need or want to file that 1040X (amended individual return) you had better get on the ball right away!

Sad That Summer’s Ending? At Least Home Burglaries Should Go Down!

BurglarI just came across an interesting report from the U.S. Department of Justice, indicating that the rate of home burglaries is significantly and consistently higher in summer than in the other three seasons of the year.

The report didn’t explain the reasons, but we can easily guess: Many homeowners take vacations during summer and leave their homes empty for days or weeks at a time; more people are typically out on the street during summer, providing cover for burglars hanging around to watch patterns of activity in the neighborhood; and, of course, no sensible burglar wants to, say, climb a ladder into a house during a rainstorm, or leave footprints in the snow.

Fortunately, Nolo has a number of helpful articles on how to protect your property from burglary, including:

You’ll especially want to read these if you’re planning any late-summer vacations! (Have a lovely trip.)


In the recent Tobias decision, the Tax Court rejected a couple’s argument that they could offset the income they would otherwise have recognized on an annuity distribution by the capital loss they incurred when they sold securities in order to purchase the annuity in the first place.

In order to buy the annuity in 2003, the taxpayers sold securities for which they incurred a taxable loss of $158,000. Then in 2010, after the annuity contract had accrued substantial income, the taxpayers withdrew a portion of the annuity balance to fund the purchase of a residence, and did not report any of the annuity withdrawal as income.

They argued that the otherwise recognizable income was a capital gain and thus should be offset by their capital loss carryforward (remaining from the originally sustained $158,000 loss). The taxpayers thought much of the “income on the contract” likely resulted from capital gains realized by the insurance company that issued the contract and/or that IRS should look at the $158,000 capital loss from 2003 as part of the cost of the annuity purchase.

“No way,” concluded the Court.