Written by PARKER HIGGINS AND TREVOR TIMM
The FBI had to rewrite the book on its domestic surveillance activities in the wake of last January’s landmark Supreme Court decision in United States v. Jones. In Jones, a unanimous court held that federal agents must get a warrant to attach a GPS device to a car to track a suspect for long periods of time. But if you want to see the two memos describing how the FBI has reacted to Jones — and the new surveillance techniques the FBI is using beyond GPS trackers — you’re out of luck. The FBI says that information is “private and confidential.”
Yes, now that the Supreme Court ruled the government must get a warrant to use its previous go-to surveillance technique, it has now apparently decided that it’s easier to just keep everything secret. The ACLU requested the memos under the Freedom of Information Act — which you can see FBI General Counsel Andrew Weissmann waving around in public here — and the FBI redacted them almost entirely.
Though the FBI won’t release the memos, we do have some information from other sources on the surveillance techniques federal agents are already using. And for the most part the FBI contends they do not need a warrant, and one wonders, given the public nature of this information, why they are officially claiming its "secret."
Tellingly, in U.S. v. Jones, after the US government lost its case in the Supreme Court with the GPS device, it went right back to the district court and asserted it could get Jones’ cell phone site location data without a warrant. EFF has long argued cell location data, which can map your precise location for days or weeks at a time, is highly personal, and should require a warrant from a judge.
In July 2012, the New York Times reported that federal, state, and local law enforcement officials had requested all kinds of cell phone data, including mappings of suspects’ locations, a staggering 1.3 million times in the previous year. Worse, the real number was “almost certainly much higher" given they often request multiple people’s data with one request. The FBI also employs highly controversial “tower dumps” where they get the location information on everyone within a particular radius, potentially violating the privacy of thousands of innocent people with one request.
In late 2012, we reported on the secretive new device the FBI has been increasingly using for surveillance known as a IMSI catcher, or “Stingray.” A Stingray acts as a fake cell phone tower and locks onto all devices in a certain area to find a cell phone’s location, or perhaps even intercept phone calls and texts. Given it potentially sucks up thousands of innocent persons’ data, we called it an “unconstitutional, all you can eat data buffet.”
The FBI has gone to great lengths to keep this technology secret, even going as far as refusing to tell judges its full range of capabilities. Recently, documents obtained by EPIC Privacy through a FOIA request shed more light on the devices.
In cities across the country, local police departments and other law enforcement agencies are installing automated license plate readers that create databases of location information about individual cars (and their drivers). These readers can be mounted by the side of a busy road, scanning every car that rolls by, or on the dash of a police car, allowing officers to drive through and scan all the plates in a parking lot.
In Washington, D.C., nearly every block is captured by one of the more than 250 cameras scanning over 1,800 images per minute. In Los Angeles, more than two dozen different law enforcement agencies operate license plate readers to collect over 160 million data points. This surveillance is untargeted, recording the movements of any car passes by. In cities that have become partners in the FBI’s Joint Terrorism Task Force, or have entered into another data-sharing agreement, this location information is at the fingertips of those federal agents.
On top of all this, the FBI is one of just a few dozen public agencies that has an authorization to fly a drone in the U.S. There is no evidence at this time that they are actively pursuing or using a specific device. But we do know that other branches of the federal government, namely the Department of Homeland Security (DHS), are conducting drone surveillance along the U.S. border, and have at least occasionally loaned these capabilities to other departments. EFF has sued DHS for more information about that program, but in the meantime, as with the redacted documents, information about their use in surveillance remains frustratingly opaque.
This is just the latest example of the Obama administration trying to interpret public laws in secret without adequately informing its citizens. Currently, EFF is suing the government for its secret interpretation of the Patriot Act Section 215, and for secret FISA court opinions that could shed light on the NSA warrantless wiretapping program. In addition, the ACLU has sued the Obama administration for its legal opinion stating it can kill US citizens overseas, away from the battlefield.
Of course, law enforcement needs the ability to conduct investigations. But explaining to the public how it generally conducts surveillance puts no one in danger, and compromises no investigations. After all, criminals have known the FBI has been able to wiretap phones with a warrant for decades and it hasn’t stopped them from using wiretaps to catch them.
This information is vital to know if law enforcement is complying with the law and constitution. As we’ve seen with GPS devices, and we are now seeing with cell phone tracking and the use of Stingrays, law enforcement will push the limits of their authority — and sometimes overstep it — if they are not kept in check by an informed public.