Cellphone spying technology used by federal law enforcement will not have the software capability to scoop up individuals’ actual communications, like texts or pictures, law enforcement officials said Tuesday.
Officials from the Justice Department and the Department of Homeland Security (DHS) told lawmakers the devices will not be configured to collect the actual content from people’s phones.
{mosads}”Our policy requires that they be configured not to collect content,” Justice Department lawyer Elana Tyrangiel told a House Oversight subcommittee.
“The kind of configuration we are talking about — [with] an understanding I am a lawyer and not a technologist — is the software configuration, not an ‘on’ and ‘off’ switch where someone could switch it on and off,” she added.
DHS lawyer Seth Stodder said, “I know for a fact that the cell site simulators that DHS uses do not collect content, and cannot collect content.”
DHS said its use of the technology in the past never scooped up actual content from mobile phones, while the Justice Department demurred.
“I will have to get back to you about what the policy said,” Tyrangiel said.
The small devices, commonly known as stingrays, use technology to mimic the signal of a cellphone tower. Mobile phones are forced into sending their unique signal to the devices, revealing the phone’s general location. The government says the devices are used in limited circumstances either to track a specific cellphone or to scoop up the signal of a number of phones in an area when a target is not known.
After a series of media reports and public pressure, both agencies drafted legal policies that now require a warrant before using the technology. There are a few carve-outs for exigent or exceptional circumstances, and the policies won’t apply to local or state law enforcement conducting investigations on their own.
“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,” the American Civil Liberties Union’s Neema Singh Guliani said about the new DHS policy.
The FBI has received criticism in the past for forcing some local and state law enfacement to sign nondisclosure agreements when working with federal authorities on the technology. But Tyrangiel, the Justice Department lawyer, said those agreements are being revised.
“The non-disclosure agreements you are referring to are agreements between the FBI and state and local law enforcement,” she said. “Those agreements are intended to protect particularly sensitive information about the operations of the technology, the capabilities of the technology. They are not meant actually to preclude more transparency in terms of disclosing that they have been used in any particular case and actually the FBI is revising those agreements now.”