Boy, the FBI just has an answer for everything, doesn't it? If the FISA court doesn't grant your top-secret warrant for wiretapping (which is unusual because it almost always grants warrants), you just shrug your shoulders and issue a National Security Letter instead.
And if some people insist that your cellphone-deceiving surveillance technology is illegal, you just say you don't need a warrant. Problem solved!
We're All in Public, Right?
The cellphone-deceiving technology is the Stingray, a secretive little box that we've blogged about before. The Stingray presents itself to cellphones as a legitimate cell tower, and once a cell phone connects to it, the Stingray begins recording all of the data coming from the cellphone.
In December, the two ranking members of the Senate Judiciary Committee wrote a letter to the Justice Department wondering just what this Stingray stuff was and how the FBI used it. Part of the letter reiterated the FBI's "new policy" on Stingray use. Apparently, the FBI thinks it needs a warrant except in cases of emergencies to public safety, fugitives, or "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."
Yeah. Read that last sentence again and you'll understand why TechDirt's Tim Cushing is skeptical:
A Stingray device is rarely deployed from the comfort of the suspect's living room. In fact, it's safe to say this never happens. What does happen is that Stingrays are deployed from vehicles on public streets or flown overhead in aircraft. It would probably be safe to say that there has not been a Stingray deployment that didn't occur in a public place.
That's a brilliant little sleight-of-hand the FBI employed: It's not wiretapping if you're listening in from a public location. Never mind that the FBI isn't standing around the corner in a large public square; it's deceiving cellphones into connecting to its recording device, then recording the data remotely. The FBI is back in Washington. The cellphone user is in his house. But the Stingray? That's parked outside, on a public street. No expectation of privacy there, right?
I Thought We Settled This Already
That argument wouldn't have made sense back in 1967, either. How do I know? The U.S. Supreme Court didn't buy it even when the FBI attached a listening device to the outside of the phone booth Charles Katz used to phone in his illegal gambling wagers. Even though Katz was in a public phone booth, and the FBI was probably in public too, the Court still said that "[o]ne who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world."
Hopefully the FBI doesn't seriously believe that its actions today are somehow less offensive than they were back then. Then again, this is the organization that thinks children will die if they can't hack your iPhone at a moment's notice.