Justice Dept., federal court reassess bulk surveillance programs

by | May 7, 2015 | Criminal Defense

Have you heard about the “Stingray” cellphone tracking device? The Stingray and its competitors are devices that mimic cellphone towers, giving users access to all the information cellphone companies collect. Like what? So-called “metadata,” which reveals exactly where your phone is located, who you’re calling, who’s calling you, and how long your phone calls lasted– all in real time.

Federal law enforcement have been heavy users. The U.S. Marshals Service, for example, has reportedly equipped a fleet of planes with them. As we’ve learned recently, local police departments have also taken advantage of cellphone tracking devices — and sometimes lying about it to judges and juries.

Even more alarming, perhaps, has been the bulk collection of cellphone metadata and other private information by the National Security Agency. This massive program had been shrouded in utter secrecy until its existence and operational details were revealed by whistleblower Edward Snowden. Now we know that the NSA has been making a secret record of virtually every American’s behavior on the phone and, to an unknown degree, their online behavior as well. The NSA has denied collecting the “content” of phone calls, text messages, emails and other items sent by smartphones, but the Snowden documents have appeared to contradict that claim.

Whatever the final conclusions drawn from the Snowden leaks, even the program as described by the NSA appears to have been illegal. This week, the U.S. Court of Appeals for the Second Circuit ruled that the NSA’s bulk collection of Americans’ cellphone metadata is unconstitutional. The court disagreed with the claim that the program was clearly authorized by Section 215 of the USA Patriot Act. Instead, the court found that since only a few select members of Congress were aware of the full scope of the program, there simply hasn’t been any substantive debate in Congress that would justify such massive surveillance of Americans. The 2nd Circuit did not rule on the constitutional issues.

Even before the 2nd Circuit’s ruling, the U.S. Department of Justice announced it was reconsidering federal law enforcement’s overall use of Stingray devices. According to reports, federal agencies have all-too-often claimed emergency exceptions to avoid getting warrants, or simply not bothered to get warrants before using the devices.

A spokesperson explained the agency was “examining its policies to ensure they reflect the Department’s continuing commitment to conducting its vital missions while according appropriate respect for privacy and civil liberties.”