Department of Homeland Security officials said Wednesday it will require its law enforcement agencies to obtain a warrant before using cell phone tracking devices, a move that may shed more light into the controversial and secretive practice federal agencies fought for years to keep undisclosed.
The new policy made public Wednesday requires all agencies under the Department of Homeland Security to obtain a search warrant before deploying the cell site simulators commonly known as "Stingrays," and to immediately delete all mobile phone data obtained after a mission, or investigation, is completed.
The new guidelines and procedures, sent to department heads Monday and effective immediately, closely resemble the guidelines drafted by the U.S. Justice Department in September.
Under the new rules, which would now affect nearly all federal law enforcement agencies, investigators will need signed warrants before using the devices, a reversal of previous practice that had local and federal law enforcement agencies denying and excluding any mention of the surveillance devices in court or in public.
The FBI, for example, required all local law enforcement agencies to sign a non-disclosure agreement before even starting inquiries to purchases the devices or contacting the manufacturer, Florida-based Harris Corporation.
"In all circumstances, candor to the court is of paramount importance," the new policy states.
The American Civil Liberties Union, which as pushed federal officials for transparency, applauded the new need for warrants but stated the policy was filled with loopholes and exceptions.
"The biggest problem is that it doesn't always require the government to get a warrant, or delete the data of innocent bystanders swept up in the electronic dragnet," Neema Singh Guliani, legislative counsel for the ACLU said in a statement. "The guidance also does not apply to state and local agencies that receive money from DHS to buy these devices."
The new policy also includes exemptions for when a warrant is not needed, including "exigent" and "exceptional" circumstances that would make the process of getting a warrant not practical, including immediate danger of death or injury to a person, conspiratorial activities, and immediate threats to national security.
Homeland Security Assistant Secretary Seth Stodder told a House subcommittee Wednesday that the "exigent" exemption would also include Secret Service protective details from having to obtain a warrant in the case of unspecific threats to the president or other protected people, the Associated Press reported.
Cell site simulators have been used for years by federal and local law enforcement agencies. The devices, which are now small enough to be carried by a person, mimic cell phone towers and trick nearby mobile phones into revealing information such as their location.
The new DHS policy does not reveal the full capability of the devices, but does state that "components must be configured as pen registers and may not be used to collect the contents of any communication."
It also requires training of agents and officers who deploy them, a service that is usually provided by Harris as part of the purchasing price of the equipment, according to documents reviewed by BuzzFeed News.
If the device is used in an airplane, the policy states, it must be directly approved by a Special Agent in Charge.
The policy also discloses something that privacy and technology experts have long suspected about the devices — that using them does disrupt the cellular service of all other cell phones in the area.
That disruption must be included in affidavits when obtaining a search warrant, though the department points out that, "generally, in a majority of cases, any disruptions are exceptionally minor in nature and virtually undetectable to end users."
The agencies affected by the new policy would include the U.S. Customs and Border Protection, U.S. Coast Guard, U.S. Immigration and Customs Enforcement, and the U.S. Secret Service, as well as any local police departments that ask those agencies for help or use of the Stingrays.
But according to the ACLU, the guidelines would exclude times when the devices are not used in criminal investigations, such as when they are used during protests or border areas.
"Congress needs to pass legislation to ensure that the use of these and other location tracking technologies respect the Fourth Amendment," Guliani said.
Some states have already adopted laws that will require local police and sheriff departments to get a warrant before using Stingrays, including Utah, Minnesota and Virginia. Earlier this month, California also adopted a new law requiring a search warrant for all electronic snooping, including Stingrays.