Report on warrantless surveillance shows Congress must update privacy laws

Published: Jan 3, 2017

Author: Blake Farenthold

Publication: The Hill

Imagine living in a country where individual privacy is not protected. Where local police officers can read your text messages without a warrant. Where state and federal officers can trick your cell phone into thinking it’s connecting to a cell tower when it’s really connecting to a device that gives big brother your location and the telephone numbers you’re calling. Where none of your cell phone use is private and some officers don’t need probable cause to track you.

Because of an outdated law, and devices known as “Stingrays,” this is not fiction – it’s America today.

According to a report released Monday, the Department of Homeland Security and the Justice Department have spent more than $95 million to secretly track cellphones. There are more than 400 Stingray devices being used by local, state and federal agencies. These devices can be so small, they fit in a backpack.

Unlike most federal agencies, state and local law enforcement are not getting a warrant to conduct this search of your cell phone. Local law enforcement agencies, like the New York Police Department, are using and operating these devices without requiring officers to obtain a warrant supported by probable cause prior to using them. In some cases, the government can even capture call history, intercept conversations and store text messages.

The bipartisan U.S. House Oversight and Government Reform Committee, of which I’m a member, has issued four recommendations to protect Americans from cell site simulators to ensure American’s right to privacy is respected. The recommendations include:

  • Congress should pass legislation to establish a clear, nationwide framework for when and how geolocation information can be accessed and used.
  • DOJ and DHS should make federal funding and/or approval of cell-site simulator technology to state and local law enforcement contingent on a requirement that these law enforcement agencies at a minimum adopt the new and enhanced guidelines that have been promulgated by DOJ and DHS for the use of these devices.
  • State and local law enforcement agencies should, at a minimum, adopt policies for the use of cell-site simulators that are equivalent to the new and enhanced guidelines DOJ and DHS have established for their use of these devices.
  • Non-disclosure agreements should be replaced with agreements that require clarity and candor to the court whenever a cell-site simulator has been used by law enforcement in a criminal investigation.

I applaud this yearlong investigation into what is clearly a violation of the Fourth Amendment.

One way we can address these issues is by passing the F.A.I.R. (Fourth Amendment Integrity Restoration) Surveillance Act and the Stingray Privacy Act. These bills were introduced in the last legislative session and I will be working with my colleagues to reintroduce them next year.

These bills would ensure all federal, state and local agencies using Stingray devices obtain a warrant based on probable cause. Because local law enforcement agencies receive Stingray devices from the federal government, they would require these local and state agencies to conform to federal guidelines.

I will also begin working with my colleagues in the 115th Session to reintroduce the Online Communications and Geolocation Protection Act, which amends the federal criminal code to prohibit a government agency from intentionally intercepting geolocation information, or disclosing it, without a warrant. This bill would shield internet and cell phone users from a broad, outdated law allowing the government to conduct warrantless surveillance.

The Fourth Amendment is very clear that Americans have a right to be free from unreasonable searches, and the warrantless use of Stingray devices is no exception. With the Oversight investigation completed, it is time to stop police departments from having access to such technology unless these agencies can prove the need for conducting the search.