FBI Says Search Warrants Not Needed To Use "Stingrays" In Public Places 303
schwit1 writes The Federal Bureau of Investigation is taking the position that court warrants are not required when deploying cell-site simulators in public places. Nicknamed "stingrays," the devices are decoy cell towers that capture locations and identities of mobile phone users and can intercept calls and texts. The FBI made its position known during private briefings with staff members of Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Chuck Grassley (R-Iowa). In response, the two lawmakers wrote Attorney General Eric Holder and Homeland Security chief Jeh Johnson, maintaining they were "concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests" of Americans. According to the letter, which was released last week: "For example, we understand that the FBI's new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy."
Someone please aware me: (Score:5, Interesting)
How is this not, basically, wiretapping (for which a warrant would ordinarily be necessary)?
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i guess i didn't realize that the devices could distinguish if you are on a public side walk vs on your private lawn/apt next to the sidewalk...
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Just like the true Stingray can only live under water, these Stingray devices, I've heard, stop at the lawn. The CANNOT, by definition, trespass the space line between the sidewalk and the lawn, so you'd be safe if you were standing on the lawn. They can crawl over concrete, though. So they can go up your driveway and onto your porch, but the threshold into your house/apartment stops them dead in their tracks.
That's all well and good until the creepy violin music starts... Then all bets are off.
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This is true, but can be misleading. See, the FBI uses Soccer out-of-bounds rules. So, it's not over the line until the whole-of-the-signal is over the-whole-of-the-line. Unfortunately, due to the wave-form nature of the signal, this means the surveillance is only actually illegal after they have turned the device off.
Re: Someone please aware me: (Score:3, Insightful)
Good thing these devices know about walls so that they don't accidentally listen to anyone in a non-public space...
Re:Someone please aware me: (Score:5, Interesting)
There is a qualitative difference between any one conversation being overheard and every conversation being overheard. I may not have an expectation that something I say is private, but I do have an expectation that there isn't a database of everything I've ever said in public ever.
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Strictly, this is recording only the fact of a conversation, rather than the content. It's "envelope information", the kind of thing that would also be visible in public on a letter, recording timestamp, location, and addresses (though technically a letter doesn't require a return address the way a phone call does.) It's more akin to a record of everybody you've spoken to, rather than a record of everything you've said.
Not saying that there isn't still a qualitative difference, am I'm in no position to make
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Re:Someone please aware me: (Score:5, Insightful)
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No kidding - remember when phone booths were a thing? Maybe we need to bring those back.
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No kidding - remember when phone booths were a thing? Maybe we need to bring those back.
Hey, maybe we could re-market them as "The cone of silence" to tap into people's nostalgia for odd TV references :-)
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Privacy gets no respect in the crowd, never did
Crowds and public spaces are not synonymous.
Expectations of privacy (Score:5, Informative)
Because when you are in a public place you have no right to the expectation of privacy
Cellphone signals do not stop conveniently at the walls of your dwelling. How do you propose they sort out which signals are only coming from a public location? (Hint: they cannot)
Whether a communication goes over a physical wire or via the airwaves should have zero legal bearing regarding whether a warrant is needed. The police still need a warrant to tap my phone calls from work. Why should wireless be subject to different rules merely because it isn't tied to a specific physical location?
If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation.
And the police are welcome to listen in to what I say out loud in public. That doesn't mean they are automatically granted the right to hear both sides of the conversation. For that they need a warrant. The party on the other end of the conversation has rights too.
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Silly citizen. It only took a decade of engineering work with industry help to lift the veil of privacy on those conversations. You can't seriously expect privacy when circumventing it is so easy.
If you want privacy, don't use a method of communication so easily tapped into by multi-million dollar custom hardware and and 24x7 team of highly trained agents.
I mean, you might as well be yelling it for all to hear.
Re:Expectations of privacy (Score:4, Funny)
It's already illegal for anyone to record cell phone conversations without a warrant. They are considered the same as a POTS phone as far as the law is concerned. This extended so far as to ban multi-band radios that could pick up analog cell phones so that you couldn't "wiretap" them. I had one that would catch snippets of conversations in the 80's. Newt Gingrich was stung by this once when he was caught using an analog phone in the 90's. Moreover, these stingray devices are actively impersonating a cell tower, running afoul of all manner of FCC regulations in the process.
Just because you have a badge doesn't mean you can break the law. There is no reason why law enforcement should have special treatment to record without a warrant when nobody else can. "All the power is reserved for the people" and all that jazz.
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But if you're sitting in your car with the doors closed talking on that phone you do have an expectation of privacy. How in the hell would the device be able to distinguish between the two?
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Because when you are in a public place you have no right to the expectation of privacy. If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation. Depending on if your state and the state the other party is in are two or one party states it is a moot point.
So giving this the most charitable interpretation the closest metaphor is surveillance with a good directional mike. They'd also have the suspect under constant visual surveillance to make sure they were in a public place.
This would only cover the suspect's half of the conversation though, I don't care how public the place is, unless I have the volume completely cranked I expect the voice coming out of the phone to be private. I don't think it passes the smell test with texts either though, it's pretty easy
Re:Someone please aware me: (Score:5, Insightful)
The copper-cables running from my house cross plenty of public spaces. Still, tapping them requires (or used to require) a warrant.
Even if we accept this reasoning, the FBI's claim, I am afraid, would cover a cell-phone user making a call from the privacy of his house too.
Re:Someone please aware me: (Score:4, Insightful)
> The copper-cables running from my house cross plenty of public spaces. Still, tapping them requires (or used to require) a warrant.
Are we sure about that? Perhaps the FBI would like to let us know what "exceptions" exist? Perhaps because the copper cables run over public spaces that makes for an exception in their book? They certainly wouldn't want to tell us unless they had to.
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Yes, we are sure [findlaw.com].
That's true. But using information thus obtained in court would be impossible — under the "fruits of the poisonous tree" doctrine [wikipedia.org]. They would need to — and sometimes do — invent some other explanations as to how they learned, what they are presenting in court...
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But using information thus obtained in court would be impossible
Two words:
Parallel Construction [wikipedia.org]
Re:Someone please aware me: (Score:5, Insightful)
There was a recent decision that 24/7 camera surveillance of a suspect's house required a warrant even though it was somewhat equivalent to parking a police car in front of the house and watching.
There's an intuitive difference between the fact that a human being can hear you talking on the cell phone if they're nearby, and having a device that listens to every cell phone call AS IF it was a human being standing next to every person on both sides of every conversation within range. Courts are beginning to understand that.
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Because when you are in a public place you have no right to the expectation of privacy.
Does that mean that the FBI could legally wiretap a public pay phone without a warrant? That seems unlikely: being in a "public place" should not override wiretapping laws.
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Well, these expectations or lack thereof...were basically thought of with respect to things humans can sense, through hearing and eyesight (visible and audible spectrum).
However, gathering info like this with digital communications, I think this is different and you should have expectations of privacy. Tracking you electronically is not something they should readily be able to do without a warrant. This is nothing but a
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Re:Someone please aware me: (Score:5, Insightful)
Because when you are in a public place you have no right to the expectation of privacy.
Yes you do. Stop repeating that without even thinking about it.
You are communicating via a device that is generally not observable to people surrounding you. You might be sending text messages, IM's, photos, for example. Nobody around you can see that normally. This is all supposed to go over the air with GSM encryption - your phone using the strongest it can negotiate - to your carrier, who you have a contract with to carry your information. Then the signals are supposed to be switched over the phone network where it can't normally be intercepted without a warrant, and your data communications are not normally intercepted either.
The Stingray is specifically designed to masquerade as your carrier so it can get in the middle - aka wiretapping. It tries to downgrade the encryption *so that it can wiretap* and people can intercept communications that would normally be hidden from them.
If your argument was in any way true (i.e. because you are in a public place you have no expectation of privacy because anyone can hear you anyway), then the police would not need a stingray because they are local to that public place and they should just be able to walk up to you as a target and listen in in person, right? Except apart from the very specific case where you're blabbering way too loudly on a voice call, that just isn't true.
The very design of the Stingray condemns it as a wiretapping device.
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Because when you are in a public place you have no right to the expectation of privacy.
Yes you do. Stop repeating that without even thinking about it.
I think we need a Constitutional amendment. Something to the effect of "the people have an expectation of privacy in a public space". Put an end to this nonsense.
Re:Someone please aware me: (Score:4, Informative)
In the English language of the late 18th century, the 4th amendment to the US Constitution is an explicit right to privacy:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the era, "effects" meant "possessions". Indeed, that meaning is sometimes still used, for example "personal effects".
Also, in that era, "papers" was the common term for documents, because documents were "stored" on paper, which, in turn, was often stored in filing boxes or cabinets. The fact that documents are now more often stored and sent electronically should not diminish or block them from 4th amendment protections.
As for bulk data collection, back then, they had a very limited - compared to now - concept of that. They did not (nor could they reasonably have) foreseen anything remotely like the what is possible now. But the 4th amendment is still applicable even though the wording is outdated.
(I will also mention the 9th amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.)
Human nature being what it is, people, including law enforcement, will, when it suits the purpose at hand, choose to narrow or widen their interpretation of the constitution (and other laws). Thus, lawyers will continue to endlessly argue over the meaning of each word, letter, punctuation mark, etc, of the constitution (and other laws).
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If you are walking and talking down the sidewalk in town other people are able to hear your side of the conversation.
So if I'm talking quietly, cupping my hand over the mouthpiece and/or making sure that I'm not close enough to others to bother them with my conversation, the stingray will magically leave me alone?
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How is this not, basically, wiretapping (for which a warrant would ordinarily be necessary)?
I think that it's one part arrogance, as expected from the House of Hoover; pretty much a "John Marshall has made his decision: now let him enforce it!"; but way less pithy.
The other half is tortured arguments and logic-chopping legalism that hyperfocuses on means and wholly ignores outcomes. Well, yes, given the way electromagnetic radiation propagates, we can basically intercept all the calls, all the data, and a fuckton of location information; but our actual hardware won't be located on your property
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This is a humanity-wide problem. For example, while a muezzin is prohibited by the Prophet from hiring somebody else to help call faithful to prayer, there is no prohibition from using electronic equipment to magnify one's voice: and most muezzins use microphones these days.
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This is interesting as Judaism has the reverse issue. There's no biblical prohibition against using electricity on Shabbat, but Orthodox Rabbis have decided that completing an electrical circuit is "work" -- which itself is prohibited - and thus using electricity is prohibited. (Conservative and Reform rabbis allow electricity use.) However, since non-Jews aren't held to this prohibition, Orthodox Jews can ask a non-Jew to perform an action (turn on a light, turn on the AC) that the Orthodox Jew himself
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Yes, it is quite interesting — but you got this particular part wrong. Using electricity is not prohibited. Turning things on is — because making fire was disallowed. Orthodox Jews can ride elevators, for example — but they can't push buttons. For this reason, some elevators in Israel have a special "Shabbat-mode" — on Saturdays they can not be called, but simply run up
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I don't understand how it isn't exactly wiretapping. Perhaps that's what the judge will say. One can hope.
Re:Someone please aware me: (Score:5, Interesting)
How is this not, basically, wiretapping (for which a warrant would ordinarily be necessary)?
It's not wiretapping. The FBI says so. Apparently, the FBI is saying that any private citizen can just set up their own "stingrays" to intercept phone calls as long as they're in public places, and the FBI won't prosecute (at least, not with wiretapping laws). This makes sense.
This makes as much sense as waterboarding without consent not being a crime.
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No, you may not [privacyrights.org]. Under what exact circumstances the police may or may not is more dicey, but not too relevant to this case.
Stingrays are not collecting voice data, but metadata. More like a pen register than a phone line tap, but legally those require
The real truth is we don't have any real legal precedent on whether these are legal with or without warrants or not, as they and their workings have been systematically hidden from the courts. The FBI has been confiscating both the hardware and all details
Yeah, but... (Score:5, Insightful)
Re:Yeah, but... (Score:4, Insightful)
Yes, they need a license. But how do you know they don't have one? The FCC has mechanisms for special licenses.
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Feel free to search the FCC ULS database. Come back when you find one. You won't, because much of that spectrum was "sold" to cell carriers for their exclusive use.
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Re:Yeah, but... (Score:5, Insightful)
If they don't care about the 4th Amendment, why would they care about FCC licensing laws? Besides, what is the FCC going to do? Fine the FBI?
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well its a good thing that... (Score:5, Informative)
Re:well its a good thing that... (Score:5, Insightful)
The FBI doesnt get to make that decision, A Judge or congress will
Wow. Does the Constitution or Bill of Rights still work in your area of the country?
I'd like to know where it's still valid. Seems in the last few years there's been a lot of Hope that Change would happen.
And it sure as hell did.
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The very concept that a piece of paper, no matter how just or good the words on it are, can protect you from an abusive government or anything else, is bogus. The US Constitution like
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Federal government run amuck. (Score:2, Insightful)
We have a DOJ that ignores or unequally applies criminal law, natural law and the constitution.
We have judges who can be extremely activist and not rule properly.
We have a president who ignores the legislative branch when he doesn't get what he wants.
We have senators and representatives who take bribes, uh I mean campaign contributions.
What in the world could possibly go wrong?
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The FBI doesnt get to make that decision, A Judge or congress will
Yeah, a FISA judge who believes that metadata doesn't require a warrant, when metadata is itself surveillance [reuters.com], by definition.
Whatever - the sooner we admit to the police state and the smoldering remains of the Constitution, the sooner we can get on with fixing the society. Good experiment, this Natural Rights Republic, now it's time to learn from the results (and conclude that a government to protect rights is a logically inconsistent propos
Kind of like.... (Score:2)
We engineer our space craft to come down within 15 inches of our chosen return point.... with an acceptable margin of the entire earth. It hits within the acceptable range every time!
Have they ever? (Score:2)
Has any law enforcement agency ever maintained that they need a warrant for anything?
Re:Have they ever? (Score:5, Interesting)
Has any law enforcement agency ever maintained that they need a warrant for anything?
Well, traditionally not the ones that want to have any of that evidence actually be accepted in a courtroom.
Unfortunately, old-fashioned traditions like due process are illegal now.
They've been automatically classified as obstructing justice in the war against terror, hence the now-accepted norm of shoving Rights up your ass sideways.
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I always thought that a cop who violates ones rights should share the jail cell. Until we put a price on it, nothing is going to change.
Re:Have they ever? (Score:5, Insightful)
Nor is it illegal for a police officer not to read someone their Miranda rights. It simply makes it harder to build and try a successful case.
While I may not like it, arguably if they listen to everyone, but only go after the two caveats (danger to public safety, fugitive), that listening in on everyone else is "no harm no foul".
I think many are missing the distinction between whether something is "admissable in court" (warrantless seach) vs. whether it's illegal to do the search. My understanding is that detectives can, and do, conduct warrantless searches, but know it may not be admissible in court, and could even vacate other evidence (fruit of the poisonous tree). But does any enforcement agency try to stop or arrest agents making illegal searches? I don't think so. That is what makes it a legislative inquiry - a law would have to be passed making the eavesdropping a crime, not just useless to prosecutors.
The devil is in the details... (Score:5, Insightful)
So if I should happen to live next to a public place, and their signal penetrates my walls into my private residence, can I sue them for trespassing and for intercepting my calls in a place where I would have an expectation of privacy?
Of course not. *sigh*
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I used to live in south Florida (Boca Raton, about an hour north of Miami). The entire place is a tourist destination. Half of the population are the "snowbird" residents, who are basically just tourists from the north that stay there for the winter months. With the logic presented by the FBI, it sounds to me like they could get everything from Orlando down to the Florida Keys declared to be a tourist zone that is exempt from expectations of privacy.
Criminals Don't Have Privacy Interests (Score:4, Insightful)
Re:Criminals Don't Have Privacy Interests (Score:4, Interesting)
And well they might. The law is now so vast and complex that you're almost certainly a felon who hasn't been caught yet.
no reasonable expectation of privacy (Score:3)
on a phone call? These people are trash, they destroy our freedom for the sole purpose of making their job easier. Yep, the terrorists won by turning us against ourselves.
Where is the FCC? (Score:2, Interesting)
Interfering with the orderly operation of vital infrastructure would be a crime if done by an ordinary person.
Why can the the police get away with it, without any special permission.
The wrong debates. (Score:2)
There is a debates on More or less government control... That is the wrong question. The debate should be towards what actions will improve the freedom and liberty of the individuals.
I am not faulting the police for wanting such technology, it is there job to solve crimes, and any tool to help them do their job is good. However as a society, we need to stand up and say "We are willing to sacrifice safety for more liberty."
But right now we are no longer home of the Brave. Thus we are no longer becoming th
Re:The wrong debates. (Score:5, Insightful)
Many of us suspect this has been true for a lot longer than people realize. The rot has been going on for a very long time.
If the FBI is openly saying the 4th amendment is meaningless, they've been ignoring it and the rest of the laws for a very long time.
As long as people accept "you have nothing to fear if you have nothing to hide", this will get worse.
Nobody gives a shit about their liberty, they want to know when American Idol is on, and when they can get the next iPhone.
9/11 just killed any last pretense of caring about the law and liberty. And that is spilling into the rest of the world, so much so that the US is more or less the enemy of freedom and liberty on the planet.
Re:The wrong debates. (Score:4, Interesting)
I get into the "Life in a Police State" meme as much as the next guy, but if you think that this stuff started after 9/11 or any other recent event, I suggest that you study more history of this country.
The FBI has been ignoring the 4th Amendment and using available technology to do so since the organization was created. Before that, the Feds would contract with detective agencies, like Pinkerton, that would often ignore the 4th Amendment (as well as others). Local law enforcement have been ignoring it and, when caught violating it, retroactively making up enough story (depending on how friendly the local judiciary is) to artificially demonstrate compliance for even longer.
The person who wrote "the rot started in 1787" is correct. People with authority often (usually?) lose sight of what they are defending and need to be reminded of it. This can take the form of new laws or lawsuits or civil action or something else.
But the real problem is that, on the whole, the people of this country only really care about the particular rights that they wish to exercise when they want to exercise them and otherwise don't give a damn (or, to be more polite about it, are too busy living their lives to be concerned).
Comment removed (Score:4, Insightful)
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I'm getting to the point where I can drop the phone completely. I already don't trust it, nor the apps that ride upon it. While they will likely deny it, you connect to anything that requires a password and it's likely your phone can record it. B
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You are right, but sadly all it does is feed into the problem.. because those hackers and leakers can be anyone.. with "better tools".. it gives them the moral "excuse" to justify more tools like Stingray (regardless of the fact that as your pointed out they created the enemy and will continue to make more enemies).. its a vicious cycle that won't break because both sides believe they are 100% right and their actions are 100% justified.
If they don't need a warrant, can I use one too? (Score:3)
Exactly as expected in a police-state (Score:3, Insightful)
They can do things that drastically infringe on basic rights and freedoms without oversight and consequences. The police in all its forms becomes more and more like criminal gangs and grab every bit of power than they can get.
Hypocritical... (Score:4, Insightful)
Somehow I doubt they'd see it the same way if someone setup a rogue femtocell on the sidewalk outside an FBI office...
My privates are private even when in public... (Score:3)
Does this let a mall cop deploy an xray machine at the mall to see through pretty girls clothes, saying in public, clothes should not provide them with an expectation of privacy?
Radio waves are neither private nor public (Score:2)
This is a no-brainer. It is impossible to determine from a radio wave if the transmitter is in a private space or a public space. An office in an office building may or may not be legally private space. A vehicle is private space (as far as voice communication is concerned.)
This is the real key to killing this government spying. Holder's Federal Bureau of Stasi will lose this one real quick.
Out 'em: SnoopSnitch + Google maps (Score:5, Interesting)
A StingRay detector for some rooted Androids exists: http://www.tomsguide.com/us/an... [tomsguide.com]
So, I could see crowdsourcing StingRay mapping. Rooted Android + SnoopSnitch + IOIO board + interface application + Google maps + web site. If enough snoops were deployed, you could have a real time map of all StingRays in operation.
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Step 2: Deploy compromised SnoopSnitches
Step 3: (Government) business as usual.
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P.S. Thanks for the link. SnoopSnitch seems pretty cool. I'm just trying to point out that the "Gov-hats" could compromise it.
Asking the wrong question (Score:2)
The question shouldn't be if they can legally do it. The question should be why is this type of interception even possible without the cooperation of the phone company? If they can do it, so can the "bad guys".
Innocence and the Constitution (Score:2)
I've been summoned to serve for federal jury duty next month. I dearly hope I get one of these cases.
Actually, anything would be better than the financial fraud case I served on last time. We found the bastard guilty but the conviction was later thrown out by a judge.
FBI Says Search Warrants Not Needed To Use "Stingr (Score:2)
FBI Wrong
FBI says ... (Score:2)
Oh, the judicial branch of the FBI.
Arduino+GSM shield (Score:3)
Violation US/EU and US/Canada Data Privacy Treaty (Score:2)
The use of unwarranted electronic intercepts of data belonging to Canadian and EU citizens is a clear violation of both the US/EU Data Privacy Treaty and the US/Canada Data Privacy Treaty.
By our US Constitution, international treaties signed by the US Senate, as both of these were due to majority affirmation, have higher legal standing.
The FBI is lying.
So I can steal wireless alarm codes then. (Score:2)
Because they are used in public. With no expectation of privacy.
Public space? (Score:2)
How do they limit the interceptions to a public space? What they are suggesting sounds a bit like saying that tapping into private phone lines is just fine as long as the telco box where they do the tapping is in a public space -- sure those lines may lead to a private residence, but if the signal can be tapped from a public space, then it's fair game.
Scanner is Blocked (Score:2)
FBI says ... (Score:2)
*I've always wondered about the risks of parallel construction. When law enforcement makes up stories, they are risking geting caught in a lie under oath. Even if that is revealed and they offer to drop charges, a judge
Stingrays for Everyone! (Score:4, Insightful)
If the cops can do it without getting any exceptional permissions, then it must not be a crime for private citizens to do it, either. Right? Right? (Why is everyone looking at me like I just said something amazingly naive? And WTF is with all the Blade Runner "little people" quotes? I saw that movie and don't remember that many midgets.)
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just preparing for the next election cycle
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its not about how did what, its about points to be spun. or having in your arsenal something to counter all the freedoms hating decisions made under the democratic party.
Personally i hold both parties responsible. IMHO the blame lies directly with the people and agencies that carry out these decisions/policies. Just following orders was never a good defense.
Re:in public places (Score:5, Informative)
So if they tap a wire at the curb, it's a public place, and no warant is required?
So I guess it's OK for me to set up and run a Stingray-type device on private property near FBI/DoJ/DHS/TLA buildings and facilities and/or their individual personnels' home residences then, right?
Be careful what you wish for FBI/DoJ, you just may get it.
Strat
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I wouldn't blame them. People who use speakerphones and shout into them in public places are being rude, but aren't doing anything illegal.
Rudness =/= Illegal behavior
However, I'd consider listening in on phone conversations without a warrant because one of the parties may have been walking down a public street* to be illegal.
* Or in his car on a public street, or in a restaurant near a public street, or in a home/office near a public street, etc. All of which might not be in public places but apparently
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The FBI is saying phone calls placed when in public have no expectation of privacy. I was, in a joking manner, pointing out where they get that notion.