The DOJ issued its formal guidance on Stingray devices and warrants back in September. While it was a nice afterthought, it sported an underdeveloped set of teeth. The biggest problem? It’s nothing more than guidance. It’s a set of internal policies that the DOJ’s underlings are expected to follow. Any misuse will presumably be subject to written reprimands and little else.
As it is only guidance, there’s very little accountability added. If an agency violates the new policies during the course of an investigation, the violated person doesn’t have the option of seeking redress through the judicial system.
This policy guidance is intended only to improve the internal management of the Department of Justice. It is not intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.
Whatever restraints the DOJ is applying to itself matter only to the DOJ, which can perform its own internal investigations and mete out whatever disciplinary actions it feels those coloring outside of the lines deserve.
Fortunately, there’s an effort being made to open up this Stingray guidance closed-loop and introduce some real accountability. As Eric Geller at the Daily Dot reports, legislators are introducing a bill that would codify the DOJ’s Stingray guidance.
Reps. Jason Chaffetz (R-Utah), John Conyers (D-Mich.), and Peter Welch (D-Vt.) on Monday introduced the Stingray Privacy Act, which would limit the government’s use of so-called “stingray” devices— surveillance tools that pretend to be cell towers so they can intercept mobile network traffic.
The bill would only permit a government agency to collect data using a stingray if it obtained a traditional search warrant or if it carried out its investigation under the Foreign Intelligence Surveillance Act (FISA), which does not permit the targeting of Americans.
No evidence collected through a stingray without a warrant or outside the FISA process could be used in a trial, congressional hearing, or other federal, state, or local proceeding.
The DOJ’s better-late-than-never guidance could become law, turning violations of the former policies into actionable civil rights complaints. Better yet, the abuse of Stingray devices could lead to the dismissal of improperly-obtained evidence. The codification of the warrant requirement also means agencies will have more trouble obscuring the origin of introduced evidence and will be creating a discoverable, possibly FOIA-able paper trail.
The bill has bipartisan support, which is always helpful. It also has a bit of propulsion thanks to the gradual uncovering of widespread usage for bog-standard criminal investigations and widespread secrecy that has led to bogus FOIA request denials and the dismissal of criminal indictments.
The question now is whether the bill will survive intercessions on behalf of the DOJ, which would like to appear Strong on Stingrays but without actually having to deal with the public’s complaints of civil liberties violations. Expect to see child killers, kidnappers and terrorists seated at the stakeholders’ table on behalf of the FBI and others if this bill gains momentum.