09.29.15

Leahy & Grassley Press DHS To Enact Policy On Cell Phone Monitoring Technology

Senators Urge Warrant Requirement for DHS Agencies

WASHINGTON (Tuesday, September 29, 2015) –Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Patrick Leahy (D-Vt.) joined together Tuesday to press the Department of Homeland Security to safeguard Americans’ privacy when it comes to the use of cell-site simulators, also known as “Stingrays.”

Senators Grassley and Leahy have long raised concerns regarding the surveillance tool. While the devices can help law enforcement in identifying the location of suspects, they can unknowingly sweep up the cell phone signals of innocent Americans in the process. As the result of their bipartisan oversight, DOJ recently issued new rules requiring agents to obtain a search warrant in many cases before employing Stingrays. While the Senators have praised DOJ for taking needed steps to be more transparent about the use of these devices and to protect Americans’ privacy, they also have raised concerns about exceptions to the new warrant requirement. 

On Tuesday, Senators Grassley and Leahy called on DHS Secretary Jeh Johnson to establish a default warrant requirement, and to apply that rule to all agencies within the Department.

“We have previously expressed concerns about the privacy implications of these devices, as well as the inconsistent practices and policies across federal, state and local agencies that employ them,” the Senators wrote.

They added: “In light of reports that DHS also is working on a Department-wide policy to govern the use of cell-site simulators, we urge you to adopt a default warrant requirement, as DOJ did, but to avoid any ill-defined and potentially overbroad exceptions to that warrant requirement.” 

A copy of the September 29 letter to Secretary Johnson can be found online and below.

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September 29, 2015

VIA ELECTRONIC TRANSMISSION

The Honorable Jeh Johnson

Secretary of the Department of Homeland Security

U.S. Department of Homeland Security

Washington, D.C. 20528

Dear Secretary Johnson:

Thank you for the responses you have previously provided to questions we have raised regarding the use of cell-site simulators (sometimes referred to as “IMSI Catchers” or “Stingrays”) by components of the Department of Homeland Security (DHS). These devices mimic cell towers, forcing cell phones in the area to convey their approximate location and registration information.  While these devices can be useful tools for identifying the location of a suspect’s cell phone or identifying an unknown cell phone, they also present significant privacy concerns because they gather information about the cell phones of many people who are not investigative targets but happen to be in the vicinity.

We have previously expressed concerns about the privacy implications of these devices, as well as the inconsistent practices and policies across federal, state and local agencies that employ them.  Earlier this month, the Department of Justice (DOJ) publicly issued new policy guidance governing the use of cell-site simulators by DOJ components.  We are pleased that DOJ made this new guidance public; established uniform rules across its components; instituted a default warrant requirement for the use of these devices; required disclosure to reviewing courts about the way the technology works and its effect on non-target phones; and mandated deletion periods for data about non-target phones.  While we remain concerned about some of the details, and in particular the potential scope of the largely undefined “exceptional circumstances” exception to the warrant requirement, we believe the DOJ guidance is a step in the right direction.

In light of reports that DHS also is working on a Department-wide policy to govern the use of cell-site simulators, we urge you to adopt a default warrant requirement, as DOJ did, but to avoid any ill-defined and potentially overbroad exceptions to that warrant requirement.  We also remain concerned about the use of cell-site simulators by state and local agencies, which previously have been required to sign non-disclosure agreements when purchasing this equipment. 

Accordingly, please provide responses to the following questions by no later than October 9, 2015:

  1. What is the status of the DHS policy guidance review?
  1. Will the Department-wide policy be public?  If not, please explain why not.
  1. Will the Department-wide policy establish uniform rules across its components?  If not, please explain why not.
  1. Will the Department-wide policy impose a default warrant requirement for the use of these devices and avoid any ill-defined and potentially overbroad exceptions?  If not, please explain why not.
  1. Will the Department-wide policy require the disclosure to reviewing courts about the way the technology works and its effect on non-target phones?  If not, please explain why not.
  1. Will the Department-wide policy mandate deletion periods for data about non-target phones?  If not, please explain why not.
  1. Does DHS loan cell-site simulators to state and local agencies, or provide federal grants that are used by state and local agencies to obtain cell-site simulators?  If so, does DHS place any conditions on the use of those devices when purchased with federal money?  If not, are there alternative methods by which DHS can incentivize state and local agencies to adopt the above-mentioned safeguards? 

Also by October 9, 2015, please arrange for knowledgeable DHS officials to provide a briefing to Judiciary Committee staff that is responsive to these questions.  We appreciate your assistance on this important matter.

Sincerely,

                        _____________________                             _____________________

Charles E. Grassley                                         Patrick Leahy

Chairman                                                         Ranking Member

cc:       The Honorable Loretta Lynch

            Attorney General

            U.S. Department of Justice    

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