Last 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.)
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.
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.