By Devlin Barrett
WASHINGTON--The Justice Department will start revealing more
about the government's use of secret cellphone tracking devices and
has launched a wide-ranging review into how law-enforcement
agencies deploy the technology, according to Justice officials.
In recent months, the Federal Bureau of Investigation has begun
getting search warrants from judges to use the devices, which hunt
criminal suspects by locating their cellphones, the officials said.
For years, FBI agents didn't get warrants to use the tracking
devices.
Senior officials have also decided they must be more forthcoming
about how and why the devices are used--although there isn't yet
agreement within the Justice Department about how much to reveal or
how quickly.
The move comes amid growing controversy over the Justice
Department's use of such devices, some versions of which, as The
Wall Street Journal reported last year, are deployed in airplanes
and scan data from thousands of phones used by Americans who aren't
targets of investigations.
There are still many instances where law enforcement doesn't get
warrants before using the devices, sometimes called "IMSI catchers"
and known by various names like Stingray, Hailstorm, and "dirtbox,"
according to officials' public statements. The agencies that use
the devices within the Justice Department--the FBI, the U.S.
Marshals Service and the Drug Enforcement Administration--each have
different rules and procedures for their use.
The Justice Department review will determine how they should be
used, officials said.
A Justice spokesman said the department is "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."
The devices were first designed more than a decade ago to hunt
terrorists and spies overseas, but they are increasingly in the
hands of local police departments that use them to hunt all manner
of criminals--from kidnappers to everyday thieves.
The use of the technology, and the tight secrecy that surrounds
it, has begun to anger some judges and lawmakers.
Federal law-enforcement and phone-company officials also have
expressed concerns that some local police authorities were abusing
a legal shortcut by submitting an inordinate number of requests for
cellphone information, according to people familiar with the
matter. A Baltimore police official, for example, told a local
judge overseeing a murder case last month the department had used
the devices at least 4,300 times dating to 2007. The judge ruled
the use of the device in that case was permissible.
One of the most effective ways to find a suspect using the
technology is to get the last known location of the suspect's
phone--which can be provided by a phone company. Some companies can
"ping" a phone in real time to determine its general whereabouts
while others can tell investigators where it made its last call or
text.
The Journal last year detailed how the U.S. Marshals Service
flies planes equipped with the devices from airports around five
major U.S. cities, scanning tens of thousands of phones at a time
in densely populated areas as it hunts for fugitives. The Justice
Department also uses them outside U.S. soil, and a Marshals
employee was shot last July in a secret operation with such a
device in Mexico, leading some law-enforcement officials to
question how Justice Department managers decide to deploy them.
The Senate Judiciary Committee has demanded more details from
the Justice Department about their use in response to the
articles.
"We know it's got to come out," one law-enforcement official
said. "At some point, it becomes more harmful to try to keep it
secret than to acknowledge it. We just want to acknowledge it
carefully and slowly, so we don't lose what is a very effective
tool."
Officials said they don't want to reveal so much that it gives
criminals clues about how to defeat the devices. Law-enforcement
officials also don't want to reveal information that would give new
ammunition to defense lawyers in prosecutions where warrants
weren't used, according to officials involved in the
discussions.
And one federal agency, the U.S. Marshals, are fugitive-hunters
who rarely testify in court, so they are likely to reveal much less
about how they use the technology than their counterparts at the
FBI and DEA, these people said.
Law-enforcement officials say they aren't interested in
gathering large amounts of information with the devices and say
their purpose is typically finding a single suspect in a sea of
floating digital data. Privacy advocates say the methods amount to
a digital dragnet--a silent ID check of untold numbers of innocent
people who aren't suspected of anything, or even aware their phones
are being checked. The machines can also interrupt service on
cellphones being scanned.
The effectiveness of the technology in finding suspects is
prompting some local law enforcement to use it frequently.
About a year ago, Baltimore police officials began deluging some
phone companies with requests for customer cellphone information,
claiming it couldn't wait for a judge's order, according to people
familiar with the matter. Normally, police need a court order to
get that kind of information about a phone customer. But there is
an exception for emergency requests. Phone companies' rules vary,
but they generally allow emergency requests to be fulfilled in
missing-persons cases or when there is a risk of death or serious
injury. Typically, the phone company employee doesn't ask questions
to verify the nature of the emergency.
Local police departments must sign a nondisclosure agreement
with the FBI before getting access to the technology--agreeing not
to reveal details of how the technology works and to seek guidance
from the FBI if questioned in court or elsewhere. As part of that
agreement, police agencies acknowledge they may have to drop
charges against suspects if prosecuting a suspect risks revealing
information about the machines.
In contrast, the FBI doesn't require or provide legal standards
to police on best practices for how to use the devices, according
to people familiar with the issue. Officials say that if a police
department asks for advice on how they use the devices, the FBI
will provide it.
People familiar with the Baltimore matter said police there have
scaled back their emergency requests.
But some phone company officials remain concerned the emergency
request function is prone to abuse, according to people familiar
with the issue. A spokesman for the police department didn't
respond to requests for comment.
Verizon Wireless, the nation's largest cellphone provider, saw
an 8% increase in emergency requests by law enforcement nationwide
from the first half to the second half of 2014, according to
company data.
The overall number of law-enforcement requests fell by 7% from
the first half, according to Verizon. AT&T Inc. data showed a
4% increase in emergency law-enforcement requests along with an
increase in nonemergency requests. Emergency requests encompass a
range of issues, including trying to track information from dropped
911 calls.
In a federal court filing last year in Atlanta, AT&T broadly
discussed the increasing demands that law enforcement is putting on
phone companies.
"AT&T receives and responds to an enormous volume of
official demands to provide information to federal, state, and
local law enforcement agencies in the United States," lawyers for
the company wrote in the filing.
The company has more than 100 full-time employees staffed to
meet the volume of requests from law enforcement and civil
lawsuits.
Write to Devlin Barrett at devlin.barrett@wsj.com
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