On September 3, 2015, United States Deputy Attorney General Sally Quillian Yates announced a new policy that requires federal government agents to obtain a warrant before using controversial devices called an International Mobile Subscriber Identity catcher (IMSI) or a cell site simulator. In my post titled Stingray Cell Phone Surveillance dated September 2, 2015, I used the generic term Stingray to describe this technology because it is the term predominately used by law enforcement agencies. The new policy titled Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology contains these key statements:

• By transmitting as a cell tower, cell-site simulators acquire the identifying information from cellular devices. This identifying information is limited, however. Cell-site simulators provide only the relative signal strength and general direction of a subject cellular telephone; they do not function as a GPS locator, as they do not obtain or download any location information from the device or its applications. Moreover, cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. s. 3127(3). This includes any data contained on the phone itself: the simulator does not remotely capture emails, texts, contact lists, images or any other data from the phone. In addition, Department cell-site simulators do not provide subscriber account information (for example, an account holder’s name, address, or telephone number).

• The use of cell-site simulators is permitted only as authorized by law and policy. While the Department has, in the past, appropriately obtained authorization to use a cell-site simulator by seeking an order pursuant to the Pen Register Statute, as a matter of policy, law enforcement agencies must now obtain a search warrant supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure (or the applicable state equivalent), except as provided below.

• Exigent circumstances can vitiate a Fourth Amendment warrant requirement, but cell-site simulators still require court approval in order to be lawfully deployed. An exigency that excuses the need to obtain a warrant may arise when the needs of law enforcement are so compelling that they render a warrantless search objectively reasonable. When an officer has the requisite probable cause, a variety of types of exigent circumstances may justify dispensing with a warrant. These include the need to protect human life or avert serious injury; the prevention of the imminent destruction of evidence; the hot pursuit of a fleeing felon; or the prevention of escape by a suspect or convicted fugitive from justice.

• There may also be other [exceptional] circumstances in which, although exigent circumstances do not exist, the law does not require a search warrant and circumstances make obtaining a search warrant impracticable.

• When making any application to a court, the Department’s lawyers and law enforcement officers must, as always, disclose appropriately and accurately the underlying purpose and activities for which an order or authorization is sought. Law enforcement agents must consult with prosecutors in advance of using a cell-site simulator, and applications for the use of a cell-site simulator must include sufficient information to ensure that the courts are aware that the technology may be used.

• …[T]he Department’s use of cell-site simulators shall include the following practices: (1) When the equipment is used to locate a known cellular device, all data must be deleted as soon as that device is located, and no less than once daily. (2) When the equipment is used to identify an unknown cellular device, all data must be deleted as soon as the target cellular device is identified, and in any event no less than once every 30 days. (3) Prior to deploying equipment for another mission, the operator must verify that the equipment has been cleared of any previous operational data.

• This policy applies to all instances in which Department components use cell-site simulators in support of other Federal agencies and/or State and Local law enforcement agencies.

• Footnote 1 states that the policy applies to the use of cell-site simulator technology inside the United States in furtherance of criminal investigations.

The new policy met with cautious optimism from privacy advocates. In the ACLU Comment on New Justice Department Guidelines for Secretive Stingray Surveillance Devices dated September 3, 2015, staff attorney Nathan Freed Wessler said this:

“After decades of secrecy in which the government hid this surveillance technology from courts, defense lawyers, and the American public, we are happy to see that the Justice Department is now willing to openly discuss its policies. Requiring the FBI, DEA, and other agencies to obtain a warrant before deploying these surveillance technologies – in most circumstances – is a positive first step.

However, this policy does not adequately address all concerns. Disturbingly, the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices. In addition, the guidance leaves the door open to warrantless use of Stingrays in undefined ‘exceptional circumstances,’ while permitting retention of innocent bystander data for up to 30 days in certain cases.

The Justice Department must close these loopholes, and Congress should act to pass more comprehensive legislation to ensure that Americans’ privacy is proctected from these devices and other location tracking technologies.” (See also: Russell Brandom. Feds say they’ll now get warrants before using cell-tower simulators. The Verge. September 3, 2015; Kim Zetter. The Feds Need a Warrant to Spy With Stingrays From Now On. WIRED. September 3, 2015; and, Tal Kopan and Josh Gaynor. DOJ cracks down on use of cell-duping Stingrays. CNNPolitics. September 3, 2015)

It is also important to emphasize the critical limitation contained in footnote 1. Nate Cardozo, a staff attorney with the Electronic Frontier Foundation, stated in an EFF blog post titled Finally! DOJ Reverses Course and Requires Warrants for Stingrays! dated September 3, 3015, that the new policy does not apply outside of the criminal investigation context. “For instance,” he wrote, “when federal agents use cell-site simulators for ‘national security’ purposes, they won’t be required to obtain a warrant by the terms of this policy.” (See also: Brady Dale. Surveillance State Protected by a Footnote in DOJ Cell-Site Simulator Policy [UPDATED]. The Observer. September 4, 2015)

In an article titled New federal requirements on cellphone surveillance for Associated Press dated September 3, 3015, Eric Tucker quoted Mr. Cardozo as saying that he suspected the Department of Justice saw “the writing on the wall” and that the new policy will undermine the argument of state law enforcement agencies that a warrant should not be required. “We think,” Mr. Cardozo said, “that given the power of cell-site simulators and the sort of information that they can collect – not just from the target but from every innocent cellphone user in the area – a warrant based on probable cause is required by the Fourth Amendment.”

Mr. Cardozo’s comment about the seizure of data from innocent third parties is a point I made in my previous post titled Stingray Cell Phone Surveillance dated September 2, 2015. The privacy of “every innocent cellphone user in the area” is a critical Fourth Amendment issue, as it would also be under s. 8 of the Canadian Charter of Rights, given that the intrusive nature of this technology is “powerful enough to penetrate the walls of homes”. (See: Ellen Nakashima. Justice Department: Agencies need warrants to use cellphone trackers. The Washington Post. September 3, 2015)

The writing was on the wall in more ways than one. The first motion has now been filed in Baltimore asserting that the state’s attorney’s office and the police engaged in “deliberate and wilful misrepresentation” about the use of Stingray technology. Josh Insley, attorney for the defendant Shemar Taylor, said that the state’s attorney’s office colluded with the police to withhold “discovery” material from the defendant. In an article titled 2,000 cases may be overturned because police used secret Stingray surveillance published in the September 4, 2015, edition of The Guardian, Nicky Woolf quoted the motion as stating: “This was clearly a deliberate and willful misrepresentation to the court to conceal the use of extrajudicial clandestine surveillance by the Baltimore City police department,” and adding later that the State’s Attorney had demonstrated “an intentional wanton disregard of the Rules of Evidence.”

On September 3, 2015, the day before the Taylor motion was filed in Baltimore, Hanni Fakhoury, also a staff attorney at the Electronic Frontier Foundation, had made this related comment on Twitter: “The idea that DOJ needs a policy telling law enforcement to be honest to judges is pretty troubling.” Mr. Fakhoury’s observation is directly relevant to the concealment of discovery material in the Taylor motion and presumably some of the other cases under review in Baltimore. In Canada, this kind of withholding of information by an affiant in an application for a search warrant would be a serious breach of the obligation to make full and frank disclosure to the issuing judge. And the failure to provide information about the warrantless use of Stingray technology to a defendant in a criminal case would breach the state’s constitutional obligation to provide pretrial disclosure. (See e.g., R v Araujo, [2000] 2 SCR 992; and, R v Lee, 2007 ABQB 454, 426 AR 315)

As I mentioned, the new Department of Justice policy has been met with cautious optimism. In an article titled Victory against secret fake cell phone towers shows privacy isn’t dead published by The Guardian on September 4, 2015, Trevor Timm concluded:

“Since the Snowden revelations, judges have gotten more discerning of law enforcement surveillance requests (the Washington Post called it ‘the magistrate’s revolt’) and large tech companies have also gotten a lot more skeptical when dealing with the government, pushing back on spying requests, challenging them more in court and beefing up their encryption.

That’s not to say the battle is even close to won. The government is constantly trying to find new ways to warrantlessly track Americans and foreigners alike, whether it’s with license plate readers, facial recognition, or next-generation cell phone location trackers with ominous sounding names like Jugular and Lone Wolf. The NSA remains largely unrestrained. Corporations also continuously are finding new and hard-to-detect ways of mapping our web habits. And even the reforms mentioned above are fairly mild and don’t go nearly far enough.

But with sunlight forced upon law enforcement by journalists, whistleblowers and activists, coupled with legal pressure from civil liberties groups, it is undoubtedly having an effect. If privacy was ever dead, it is now unquestionably rising from the grave.” (See also: Glenn E. Rice. Secret cellphone tracking device used by police stings civil libertarians. The Kansas City Star. September 5, 2015)

Despite these developments in the United States, and despite the announced new policy by the Department of Justice, the situation in Canada remains shrouded in secrecy. Certainly, I have yet to receive disclosure of the use of Stingray technology in a criminal case. I am not aware of any cases before a Canadian court where a law enforcement agency has disclosed the use of any kind of cell site simulator technology. And Canada’s two intelligence agencies, the Canadian Security Intelligence Service and Communications Security Establishment, have refused to comment on the basis of national security exemptions. (See: Matthew Braga. Video: How does Canada’s spy agency monitor your life? The Globe and Mail. February 27, 2015)