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The Courts Cellphones Communications Government Privacy United States

Judge: Stingrays Are 'Simply Too Powerful' Without Adequate Oversight (arstechnica.com) 111

New submitter managerialslime sends news that an Illinois judge has issued new requirements the government must meet before it can use cell-site simulators, a.k.a. "stingrays," to monitor the communications of suspected criminals. While it's likely to set precedent for pushing back against government surveillance powers, the ruling is specific to the Northern District of Illinois for now. What is surprising is Judge Johnston’s order to compel government investigators to not only obtain a warrant (which he acknowledges they do in this case), but also to not use them when "an inordinate number of innocent third parties’ information will be collected," such as at a public sporting event. This first requirement runs counter to the FBI’s previous claim that it can warrantlessly use stingrays in public places, where no reasonable expectation of privacy is granted. Second, the judge requires that the government "immediately destroy" collateral data collection within 48 hours (and prove it to the court). Finally, Judge Johnston also notes: "Third, law enforcement officers are prohibited from using any data acquired beyond that necessary to determine the cell phone information of the target. A cell-site simulator is simply too powerful of a device to be used and the information captured by it too vast to allow its use without specific authorization from a fully informed court."
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Judge: Stingrays Are 'Simply Too Powerful' Without Adequate Oversight

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  • by Anonymous Coward on Friday November 20, 2015 @03:41PM (#50971421)
    But in the end, these court orders and government actions do little. These organizations are almost clandestine in nature and are just going to do what they want. Props to GNAA.
    • by bhcompy ( 1877290 ) on Friday November 20, 2015 @04:59PM (#50971851)
      They'll still use it, but it will not be used in court, rather it will be used to gather information until another method of making a charge stick is found. It's not fruit of the poison tree at that point.
      • by sumdumass ( 711423 ) on Friday November 20, 2015 @06:51PM (#50972485) Journal

        Well, it is still fruit of the poison tree but is only known as such if someone is willing to admit that was how they found the information.

        Parallel construction largely relies on a lie being in place. If at any time it is discovered that this other source or means was crafted due to the illegal connections, it can and likely would be toss out with it.

        • by Frobnicator ( 565869 ) on Friday November 20, 2015 @07:38PM (#50972655) Journal

          Well, it is still fruit of the poison tree but is only known as such if someone is willing to admit that was how they found the information.

          Parallel construction largely relies on a lie being in place. If at any time it is discovered that this other source or means was crafted due to the illegal connections, it can and likely would be toss out with it.

          One neat thing about this type of deception is that the bigger it grows, the harder it is to hide. One person can keep a secret. Two people struggle to keep a secret. Hundreds of people cannot keep a secret, there will be a media leak by with a citation as a "confidential source not authorized to talk to the media."

          If that happened it would not be one case tossed. It would be at least one case tossed and thousands of other cases re-opened for investigation, and intense scrutiny and a nasty public relations backlash.

          We had a situation in a local PD where a highly acclaimed officer was caught faking field sobriety tests, falsifying reports and even the discovery of dashcam video showing the tazering of a sober person while shouting at them. In addition to the officer losing their job and various awards, there were various convictions overturned, convictions expunged, and several settlements allegedly of a quarter million dollars each were issued.

          When discovered the impact to the groups is huge.

          Discovery of illegal wiretaps and illegal records and failure to disclose potentially exculpatory evidence? That's the kind of thing that gets mass terminations and prison time for officers.

          • by chihowa ( 366380 )

            You have far too much faith in the system. The DEA outright admitted to using parallel construction (One DEA official had told Reuters: "Parallel construction is a law enforcement technique we use every day. It's decades old, a bedrock concept.") and no cases were reopened or even scrutinized.

            If somebody at a little local PD does some sleazy illegal stuff, people may go to jail. When whole branches of the federal government start doing illegal stuff in an organized manner, it becomes the de facto law of the

    • by bigpat ( 158134 )

      But in the end, these court orders and government actions do little. These organizations are almost clandestine in nature and are just going to do what they want.

      The point of the law, as always, isn't about some wishful thinking about those who would choose to violate the law. It applies to how we want to act within the law. Murder, rape, theft, fraud, are all illegal and yet still happen far too often. The point of having a clearly defined line is to let people know when they have crossed over it.

    • Next step? (Score:4, Interesting)

      by tgrigsby ( 164308 ) on Friday November 20, 2015 @05:32PM (#50972069) Homepage Journal

      Perhaps carriers should be forced, by law, to encrypt their traffic such that the police would necessarily be forced to ask for the keys to decrypt the calls from a specific phone?

      • Stingrays wouldn't suffer any setback in this light. They work by simulating a cell tower and it is very difficult to find out that you are not connected to a legitimate tower.

        Either way, the handset would have to negotiate the encryption key in which they capture or just mimic, or it would have to be hard coded into the system in which they already mimic. The same people producing the stingrays are likely the same producing the cell towers. Even if they are not, they are designed so your handset will not k

    • by Anonymous Coward

      "We don't use stingrays. Prove to us that we do. Neither ownership nor signing out a stingray constitutes proof. Should you be able to prove it we will issue an NSL and shut you down based upon National Security considerations. Also we have the President, Administration, CIA, NSA and Homeland Security on our side."

      Problem solved!

    • Seriously. We're not talking about the CIA here. You want to build a Stingray? There are plans online. It's not hard. If I was a crook I'd say let 'em use one against me in the way you're suggesting. Without a court order it gets thrown out. If you want to stop worrying about the rest of the bad guys out there then go have a look at what Bernie Sanders is doing...
  • by JoeyRox ( 2711699 ) on Friday November 20, 2015 @03:52PM (#50971483)
    Crikey!
  • Great (Score:4, Interesting)

    by clonehappy ( 655530 ) on Friday November 20, 2015 @04:04PM (#50971557)

    So the three-letter-agencies and the local yokels will have to just continue using parallel construction. Isn't it amazing how many detailed and accurate "anonymous tips" the police receive?

    • by rsborg ( 111459 )

      So the three-letter-agencies and the local yokels will have to just continue using parallel construction. Isn't it amazing how many detailed and accurate "anonymous tips" the police receive?

      Not sure how Stingrays wouldn't be supremely helpful to parallel construction. Sure they can't prove it with the call records, but now they might be taken to task for even using them at all.

      Police State no-likey this.

    • Just because some asshats will still break the law doesn't mean we should give up on enforcing it.
  • by hawguy ( 1600213 ) on Friday November 20, 2015 @04:55PM (#50971833)

    Is there any information a stingray can collect that the cellular carriers don't also collect?

    The stingray just seems like an end-run around getting a court order to subpoena the information from the carriers.

    • by AHuxley ( 892839 )
      They get location, tech details about a call (unique ID numbers, traffic data), If needed voice prints, voice or message content, mapping or gov malware push down to allow a phone to be activated (live mic) or tracked.
      "Turns Out Police Stingray Spy Tools Can Indeed Record Calls" (10.28.15)
      http://www.wired.com/2015/10/s... [wired.com]
      Why? Parallel construction. It gets around needing a warrant, taking to/entering details into any court system or having any telco database knowing who is been looked at.
      Both court
    • by ShaunC ( 203807 )

      Is there any information a stingray can collect that the cellular carriers don't also collect?

      Yes, everyone else's information in addition to the hypothetical suspect's, with zero requirement for any semblance of probable cause.

      The stingray just seems like an end-run around getting a court order to subpoena the information from the carriers.

      Right, that's the whole point. The court would never grant a subpoena for information about "everyone who was in the area of Main St. and 4th Ave. on January the 9th," so they're subverting the court altogether.

  • by Anonymous Coward

    Any government official who eavesdrops on the communications of US citizens should get the death penalty. No exceptions.

  • FINALLY! (Score:4, Insightful)

    by tgrigsby ( 164308 ) on Friday November 20, 2015 @05:23PM (#50972003) Homepage Journal

    Someone who gets it!

    Without getting stupidly extremist ("Death to eavesdroppers"? Really?!), our law enforcement and judicial systems have gotten off into the weeds and need to be reminded that the spirit of the Constitutional amendments that grant privacy are designed to limit personal exposure down to only what is needed to investigate specific crimes committed by specific individuals. The idea of casting a wide net and picking up everyone doing anything wrong will always be attractive and based on the faulty logic that our judicial system is perfect in discerning proof of offense from misleading and incomplete evidence. The Constitution, on the other hand, assumes the judicial system is imperfect and must be held to a high standard that assumes imperfection.

  • This is something that as the CEO of a cell phone company you could fight against.

    Why hasn't someone simply said "No, the phones we issue will not connect to anything short of a proper registered cell phone tower which WE own, stingrays will be ignored".

    Or is that somethign that isn't technically possible? I'm sure there's a way. And I for one would be quite willing to be restricted to the coverage area of a specific network IF that also ensured that I was guaranteed to not be fooled by a stingray.

    Alterna

    • by PPH ( 736903 )

      This is something that as the CEO of a cell phone company you could fight against.

      If you wanted to be harrassed by TLAs for the rest of your life.

      I have a phone that displays the difference between a secure call/data connection and an unsecure (unencrypted) one. It is an ancient Motorola RAZR V3. Now, correct me if I'm wrong, but in the case of more modern phones, this feature has been dropped. And I'd guess that this was at the request of law enforcement.

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