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New DHS policy guideline raises issue of privacy in criminal investigations, P.2

Last time, we began speaking about a change in the Department of Homeland Security’s policy regarding cell site simulators. Specifically, investigators are now required to obtain warrants to use the devices. The policy is certainly an improvement over previous practice, but there are definitely privacy-related concerns over even the new policy.

As the American Civil Liberties Union has pointed out, the new policy doesn’t require investigators to obtain a warrant in every case where they use the device. Neither does it require investigators to delete data gathered from innocent people who happen to tap into the devices. After all, cell-site simulators don’t discriminate whose data is gathered, but act rather like a net by gathering data from any device which communicates with the device. 

The policy does address the common exceptions that apply to the constitutional warrant requirement, including situations where exigent circumstances would make obtaining a warrant impractical. Exigent circumstances, as some readers may know, can include situations where investigators have reason to believe that a suspect is armed and dangerous, situations where the safety of the officer or others is threatened, and situations involving “hot pursuit” of a fleeing suspect. It isn’t clear how applicable some of these situations are to the use of cell site simulators, but the new policy acknowledges them.

There are limits to what cell-site simulators actually do. They do not, for instance, allow investigators to access the contents of communications, nor do they function as GPS locators which would allow investigators to precisely track down cell phone users. Still, privacy concerns remain, especially since the use of the devices is not limited to federal investigators, but extends to state and local agencies as well. We’ll pick up on this point in our next post.

Sources:

BuzzFeedNews, “Homeland Security Now Requires A Warrant Before Tracking Your Cell Phone,” Salvador Hernandez, Oct. 21, 2015.

Department of Justice, “Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology,” Accessed Oct. 28, 2015.

American Civil Liberties Union, “Stingray Tracking Devices: Who's Got Them?,” Accessed Oct. 28, 2015.

Cornell University Law School, “Exigent Circumstances,” Accessed Oct. 28, 2015.

Scientific American, “What Is the Big Secret Surrounding Stingray Surveillance?,” Larry Greenmeier, June 25, 2015. 

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