If you're in a public place, don't expect your phone calls and texts to stay private. At least not if the FBI flies a Cessna over your head or drives a car around your neighborhood while you're out for a walk.
The FBI won't bother to obtain search warrants before it uses interception devices on people in public, according to a letter written by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and staffer Sen. Chuck Grassley (R-Iowa). These devices include Stingrays, the cell-tower decoy interception devices used to scoop up data from devices around it. The FBI puts Stingrays and similar devices known as dirtboxes in cars and small airplanes as a way to quickly dragnet data from a large number of devices while it is hunting for a device that belongs to a suspect.
Stingrays, dirtboxes, and other surveillance tools help law enforcement catch criminals. That's true. To do so, the decoys grab information from lots of innocent people by tricking their phones into sending data to the FBI before they can pinpoint a suspect. This is a substantial and wide-ranging intrusion, which is why the policy to forgo warrants is raising concerns.
Leahy and Grassley learned about this "What, me warrant?!" policy at private briefings.
Leahy and Grassley wanted to learn more about the FBI's position after reading disturbing reports from the Wall Street Journal about the spy planes equipped with dirtboxes.
The congressmen wrote Attorney General Eric Holder and Homeland Security chief Jeh Johnson to explain and critique the FBI's new position:
According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice. Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology.
The exceptions include using the spying tools on people in public, meaning the FBI doesn't have to get a warrant to use them on anyone using their phone hanging out in a local park, walking their dog on the street, or doing anything else without the expectation of privacy they'd have at home.
Understandably, Leahy and Grassley are concerned with how lenient the FBI is being with itself:
We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests.
The congressmen posed a list of questions about the surveillance program, asking for specifics about how the FBI is using Stingrays and similar tools. They aren't the only lawmakers asking questions; after the Wall Street Journal report, Senator Edward Markey sent a similarly critical letter to the Attorney General asking for more details about the airplane surveillance program.
As Ars Technica pointed out, the attitude the FBI is taking here is in line with how the Obama Administration has treated privacy in public places: Like it doesn't exist. Though the Supreme Court ruled that it was unconstitutional, the Obama Administration argued that putting GPS trackers on cars without warrants was OK because people shouldn't have an expectation of privacy while driving their car in public. This wide-ranging phone interception program is an extension of that line of thinking.
Allowing for warrantless surveillance on the phones of anyone in a public place is a mendacious scheme that tramples on any reasonable expectation of privacy. Yes, you can overhear someone's conversation as they're sitting on a patio and that's fair game. People should be able to assume the text messages they silently tap out on their iPhones is safe from eavesdropping. People should be able to assume that the call they're on alone in their car is not game for government interception just because they're in the general vicinity of someone who might have committed a crime. Leahy and Grassley are right to ask questions. Now we need the answers.[Ars Technica]