A new set of guidelines set forth by the U.S. Department of Justice on how and when law enforcement uses controversial cellphone surveillance technology will not apply to state, county or local police departments, according to documents reviewed by The Desk.
The decision not to enforce the guidelines leaves open the likelihood that some 40 local police departments across the country who currently have access to devices known as a StingRay or DRTBox will continue to use them in benign criminal investigations with little to no oversight.
The devices, which are also known by other brand names, are controversial in that they act as a cellphone tower when deployed by police. Once activated, they indiscriminately gather data from all cellphones within a given radius of the gear — between one city block and one mile, depending on the device. That data includes phone information, call logs and text message data, among other material.
The devices are also controversial because they are often used by police without a warrant. Records obtained under various public records requests reveal local agencies who have the devices use them hundreds — sometimes thousands – of times absent a warrant in a wide range of criminal investigations.
In July 2014, a local law enforcement official in Georgia told The Desk that his agency was authorized to use their StingRay gear in “in criminal investigations with no restrictions on the type of crime.” Data reviewed by The Desk under various public records requests filed by local media outlets found that StingRays and other spy gear are used in drug cases and other benign investigations.
Under the new guidelines issued Thursday, local police will still be allowed to use the devices in any investigation because the guidelines apply only to federal law enforcement agencies such as the FBI, DEA and ICE.
Some privacy advocates are still welcoming the new guidelines as a step forward in the right direction. Previously, the FBI asserted it did not need to obtain a warrant before using a StingRay or other phone surveillance gear when deployed because a person did not have a reasonable expectation of privacy when they use their phone in public. Under the new guidelines, federal law enforcement will now have to obtain a warrant in most cases irrespective of when or where the targeted phone is used.
The guidelines also require federal law enforcement to delete any location data acquired from phones that are not subject to an investigation, and forbids federal police from obtaining call logs or other communication data from any phone through the use of a StingRay.
It was not clear why the Justice Department, which requires all local law enforcement agencies to sign a non-disclosure agreement prior to obtaining the cellphone surveillance gear, chose to limit their guidelines only to federal police.