Secret Service Allowed to Conduct Warrantless Cellphone Eavesdropping

Mario Trujillo

October 22, 2015

Secret Service gets warrant exception from cellphone spying 

The Department of Homeland Security will require a search warrant going forward before using cell cite simulators, which are small devices that can identify mobile phone signals and place their general location.

The department pointed to Secret Service protection of the president and other important individuals as an exception to the warrant rule, where the facts on the ground make obtaining a search warrant “impracticable.”

Those “exceptional circumstances” with the Secret Service, however, would still force the department to comply with Pen Register laws, which generally requires prior court approval except in emergencies. It must also get approval from executive-level personnel and the Justice Department.

“USSS personnel use this technology in support of its protective and investigative missions, and in its joint law enforcement operations with state and local law enforcement,” said Seth Stodder, an assistant secretary at the Department.

The new department policy mirrors that of the Justice Department, which recently released its own legal memo. Homeland Security released its memo dated Oct. 19and Stodder’s testimony ahead of a House Oversight subcommittee hearing Wednesday afternoon.

The small devices, commonly known as stingrays, use technology to mimic the signal of a cell phone tower. Mobile phones are tricked into sending their unique signal to the device, pointing out the phone’s general location. The government says the devices are used in limited circumstances either to track a specific cell phone or to track a number of phones when the specific target is not known.

The Justice Department and the Homeland Security Department both say they do not collect the content of communication using the technology.

The Homeland Security Department pointed to two specific Secret Service provisions that would not require a search warrant to use the technology.

One is the protection of the president and other important individuals like presidential families, former presidents, presidential candidates and foreign heads of state. The other provision references the protection of locations, including the White House and any place the president goes.

In his testimony, Stodder points out that while the technology may disrupt others’ mobile phone calls, that is not the intended aim.

“To dispel another misconception – law enforcement use of cell-site simulator technology will not disconnect end users from calls in progress,” he said.

Aside from the specific mention of Secret Service exceptions, the legal memo tracks closely with the Justice Department’s previous draft.

The Justice Department released a legal memo in September to require users to obtain a warrant. There are certain emergency circumstances when law enforcement can go around the Fourth Amendment, including cases involving the need to protect life, stop serious injury, follow a hot pursuit, or to prevent the imminent destruction of evidence. But in most of those cases, prior court approval is still necessary.

In addition, the use of the technology on planes requires approval from an executive-level point of contact.

The legal memos also set specific retention and deletion policies, ranging from one day to a month, depending on whether the target is known or unknown. The memos also require tracking of the amount of times the technology is used and transparency requirements to explain to judges how the technology actually works when obtaining a warrant.

Sen. Patrick Leahy (D-Vt.), who has previously pressed for answers on the technology, said the legal memo was a positive first step, but pointed to “problematic” exceptions.

“I am disappointed that DHS has included the same problematic exception to the warrant requirement that is in the Justice Department’s policy. Additionally, this policy is limited to criminal investigations, and it is not clear what rules will apply to any use of cell-site simulators for other DHS missions,” Leahy said in a statement.

Similarly, The American Civil Liberties Union said the policy is “riddled with loopholes.”

“The biggest problem is that it doesn’t always require the government to get a warrant, or delete the data of innocent bystanders swept up in the electronic dragnet, said Singh Guliani, a legislative counsel with the group.