When a Secretive Stingray Cell Phone Tracking Warrant Isnt a WarrantHanni Fakhoury Stingray is the brand name of an International Mobile Subscriber Identity locator, or IMSI catcher. A Stingray acts as a fake cell-phone tower, small enough to fit in a van, allowing the government to route all network traffic to the fake tower. Weve warned that Stingrays are dangerous because they have the capability to obtain the contents of electronic and wire communications while necessarily sucking down data on scores of innocent people along the way. The Fourth Amendment requires searches be reasonable, generally meaning they must be accompanied by a warrant. To get a warrant, the government must show there is probable cause to believe the place they want to search will have evidence of a crime. And it means the judge must issue ensure the warrant is particular, or limited to only allow searches into areas where the evidence is most likely to be found. The only way a judge can make these tough decisions is with the government being forthright about what its doing. But when it comes to Stingrays the government has been extremely secretive about its use, withholding documents in FOIA requests, failing to explain or even understand the technology to a Texas federal judge, and in Rigmaiden, misleading the court about the fact its even using one at all. Daniel David Rigmaiden is charged with a variety of tax and wire fraud crimes. Hoping to pinpoint Rigmaidens precise location within an apartment complex, federal agents applied for an order requesting the court to order Verizon to help the agents pinpoint the physical location of a wireless broadband access card and cell phone they believed Rigmaiden was using. The order is clearly directed towards Verizon: The Court therefore ORDERS, pursuant to Federal Rule of Criminal Procedure 41(b); Title 18, United States Code, Sections 2703 and 3117; and Title 28, United States Code, Section 1651, that Verizon Wireless, within ten (10) days of the signing of this Order and for a period not to exceed 30 days, unless extended by the Court, shall provide to agents of the FBI data and information obtained from the monitoring of transmissions related to the location of the Target Broadband Access Card/Cellular Telephone Ultimately, it turns out the government did not just get Verizon to give it the data. It also used a Stingray device to find Rigmaiden, sucking up loads of other data from other electronic devices in the complex as well, which it deleted. When Rigmaiden filed a motion to suppress the Stingray evidence as a warrantless search in violation of the Fourth Amendment, the government responded that this order was a search warrant that authorized the government to use the Stingray. Together with the ACLU of Northern California and the ACLU, we filed an amicus brief in support of Rigmaiden, noting that this order wasnt a search warrant because it was directed towards Verizon, made no mention of an IMSI catcher or Stingray and didnt authorize the governmentrather than Verizonto do anything. Plus to the extent it captured loads of information from other people not suspected of criminal activity it was a general warrant, the precise evil the Fourth Amendment was designed to prevent. The FOIA documents bolster our argument that this isnt a warrant. The documents are a series of internal emails from DOJ attorneys in the United States Attorneys Office for the Northern District of California, the district where the order in Rigmaidens case was issued. Theemails make clear that U.S. Attorneys in the Northern California were using Stingrays but not informing magistrates of what exactly they were doing. And once the judges got wind of what was actually going on, they were none too pleased: As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcements WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individuals location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit. While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates. Judicial supervision of searches is most needed when the government uses new technologies to embark into new and unknown privacy intrusions. But when the government hides what its really doing, it removes this important check on government power. We hope the court sees its been duped, and makes clear to the government that honesty and a warrant are requirements to using a Stingray. linkwithin_text=Related Articles: 