A recent announcement by the U.S. Department of Justice regarding new rules for federal law enforcement agencies using cellphone tracking technology may not be as effective as originally touted by the DOJ.

Truth In Media’s Rachel Blevins reported on the new rules:

“The U.S. Department of Justice announced on Thursday that it will now require U.S. prosecutors and some federal law enforcement agencies to obtain a search warrant in order to use cellphone tracking technology.

In a statement, the DoJ said that the new policy “goes into effect immediately” and will “provide department components with standard guidance for the use of cell-site simulators in the department’s domestic criminal investigations,” and “establish new management controls for the use of the technology.”

Before the change in policy, U.S. government agencies were permitted to use cell-site simulators or “stingray” devices to replicate phone towers in order to track a phone’s location without applying for a warrant or giving probable cause.”

However, shortly after the announcement was published, The New York Observer reported that the rule change may have been written in a way which will allow continued tracking, as well as hinder the defense of individuals who suspect they have been monitored by the Stingrays without a warrant.

The Observer writes:

“The twist in a new Department of Justice guidance on tracking people using their cell phones is tucked in its first footnote. What looks like a positive step in terms of protecting Americans privacy in the ever deepening surveillance state might in fact be a sort of misdirection. The first footnote reads:

This policy applies to cell-site simulator technology inside the United States in furtherance of criminal investigations.”

Nate Cardozo, a staff attorney at the Electronic Frontier Foundation, told the Observer that the use of “criminal investigation” only specifies one kind of work the DOJ performs while pursuing criminals. “For instance, when federal agents use cell-site simulators for ‘national security’ purposes, they won’t be required to obtain a warrant by the terms of this policy,” Mr. Cardozo wrote on the EFF blog.

Senator Patrick Leahy (D-Vt.), the ranking member on the Senate’s Judiciary Committee, also expressed concerns over the language used in the rules, specifically the exemptions to getting a warrant. According to the District Sentinel, Leahy stated, “I will press the Department to justify them.”

The rule change states that in “exigent” and “exceptional” circumstances obtaining a warrant is not necessary. The department described exigent circumstances, including “the need to protect human life or avert serious injury; the prevention of the imminent destruction of evidence; the hot pursuit of a fleeing felon; or the prevention of escape by a suspect or convicted fugitive from justice.”

Although the department says the instances in which getting a warrant is “impractical” will be limited, no examples of circumstances that fit the bill were offered.

The American Civil Liberties Union released a statement calling the new rules a step in the right direction, but also commented on problematic areas.

Staff Attorney Nathan Freed Wessler writes:

“Disturbingly, the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices. In addition, the guidance leaves the door open to warrantless use of Stingrays in undefined ‘exceptional circumstances,’ while permitting retention of innocent bystander data for up to 30 days in certain cases.”

Cardozo also said for defendants who are arrested under evidence obtained in a warrantless use of a cell-site simulator, “You’re out of luck.”

Emily Pierce, a spokesperson for the Department of Justice, responded to The Observer’s questions about the language of the rules. Pierce wrote:

“When acting pursuant to national security authorities, such as the Foreign Intelligence Surveillance Act, Justice Department components will be required to make a probable-cause based showing as well as make appropriate disclosures to the court in a manner that is consistent with the Department’s cell-site simulator policy.”

The DOJ’s rules also promise that  “the Department must always use the technology in a manner that is consistent with the Constitution and all other legal authorities.”

Despite the DOJ’s promises, privacy advocates are likely not going to be won over by the rules. Truth In Media recently wrote about a report from the Center for Investigative Reporting which revealed that police in Chicago and Los Angeles are using advanced cell site simulators, or Stingray surveillance technology capable of breaking cellphone encryption.

Truth In Media has written extensively about how the devices are being used to track suspected criminals while largely operating without oversight from local, state, or federal authorities. Exactly how the devices operate and what data they collect and/or save has been unknown because of a vast amount of secrecy surrounding the tools.

Most of the available information been released through the efforts of intrepid investigative journalists and Freedom of Information Act (FOIA) activists has related specifically to the manufacturer of the Stingray – the Harris Corporation. The Harris Corporation has exercised a great amount of secrecy surrounding these tools. Truth In Media previously reported on documents which revealed the Harris Corp. worked with the Federal Communications Commission to maintain a high level of secrecy. I have also documented the fact that Harris Corp. lied to the FCC in their application for the use of cell site simulators.

[Read more about government involvement in stingrays here.]

Is the American public expected to believe that the new rules from the DOJ will actually reign in the surveillance state? The new rules do not change the law, so essentially the change amounts to promises from the federal government. Even if Americans take the feds on their word, what about the local police departments who are also using the devices without warrants? How can we ever trust that Big Brother is not watching or listening?

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