By Keith Johnson —
Did you think that the National Security Agency was the only United States government entity engaged in warrantless spying on your private telephone conversations? Think again. A recent report in The Wall Street Journal revealed that one law enforcement branch of the U.S. Department of Justice (DoJ) has been flying over the skies of America for several years collecting data on potentially hundreds of thousands of cellphone users.
According to the report, the U.S. Marshals Service has been operating a “fully functional” airborne surveillance operation out of five metropolitan area airports since 2007. Sources close to the Journal claim the agency “regularly” deploys small engine Cessna aircraft equipped with devices that “mimic cell towers” and “trick cellphones” into sharing otherwise private telecommunications traffic.
The Marshals Service claims it’s using this technology to locate fugitives. For example, if a suspect is believed to be in a specific geographical region, they will fly over that area and scan thousands of cell phones in search of the one connected to that individual. Once the targeted signal is intercepted, the system is sophisticated enough to locate the suspect within a space of about 10 feet.
The most disturbing aspect of this effort, however, is that cell-phone data of innocent Americans is also scooped up in this dragnet, and there is no accounting for what is ultimately being done with that information.
Although the DoJ has thus far refused to confirm or deny the existence of the program, an official who spoke with the Journal said that the investigative techniques utilized by the Marshals Service are deployed “only in furtherance of ordinary law-enforcement operations, such as the apprehension of wanted individuals, and not to conduct domestic surveillance or intelligence gathering.”
Not everyone is willing to take the feds at their word, though. Among them is Hanni Fakhoury, a staff attorney for the Electronic Frontier Foundation (EFF), the nation’s leading nonprofit organization defending civil liberties in the digital world.
“An innocent person’s cell-phone data is inherently private and should not be scanned in the course of locating a criminal suspect,” Fakhoury said during a recent interview with this AMERICAN FREE PRESS reporter. “The [Journal] story suggests that [the Marshals Service] is getting authorization, but we’re curious to find out exactly what that is and where it’s coming from. Are they securing a search warrant?”
Fakhoury went on to say that similar ground-based technology—known as “stingray” devices—have been used by the Federal Bureau of Investigation and local law enforcement for more than a decade, but that this practice has become highly controversial in recent years.
“There’s been considerable public outcry with a focus on educating judges and defense attorneys about the technology and how it’s being used,” he explained. “In fact, a recent article in a Washington state newspaper talked about a number of judges there who didn’t realize they were approving surveillance requests that used stingrays.”
According to the article, which appeared November 15 in Tacoma’s The News Tribune, 22 superior court judges in Pierce County “unwittingly signed more than 170 orders” from 2009 to early 2014 authorizing “Tacoma police and other local law enforcement agencies” to deploy the stingray device.
“The judges only learned of the devices after reading about them in the newspaper,” said Fakhoury. “Then they got together with the [law enforcement] agencies there and told them they were now required to fully explain how they intend to use the technology and have a policy in place on how they handle innocent people’s data. So we are starting to see some positive change and reform.”
When asked what EFF is currently doing to address these developing issues, Fakhoury replied, “We’re working on all fronts. More specifically, we just filed an amicus brief in the Eleventh Circuit Court of Appeals [United States v. Davis] seeking the requirement of a warrant for cellphone tracking.”
According to the document cited by Fakhoury, EFF argued that law enforcement’s cellphone tracking constituted a search “because people keep their phones with them as they enter private spaces traditionally protected by the Fourth Amendment.”
Fakhoury continued: “We also do a lot of legislative work, talking with lawmakers at both the state and federal level and encourage them to pass legislation that imposes stronger privacy protections. And we also do a lot of education and outreach to the legal community and general public to warn them about these devices and why we need procedural safeguards. We’re trying to do it all to ensure that people’s privacy rights are protected.”
Keith Johnson is a writer based in Tennessee. He can be contacted at [email protected].