“The DOJ’s new policy on cell-site simulators is a step in the right direction,” Jeramie Scott, national security counsel at the Electronic Privacy Information Center (EPIC), told Common Dreams. “Most importantly, the policy requires a warrant to use the devices, prohibits their use to intercept communications, and requires the deletion of all non-target data.”

“Unfortunately, the policy only applies to DOJ components,” Scott continued. “Additionally the national security exception could be used as a loophole around the warrant requirement in some circumstances if combined with parallel construction—a practice of reconstructing the evidence obtained in a criminal case to conceal the true source.”

Nathan Freed Wessler, staff attorney for the ACLU’s Speech, Privacy, and Technology Project, added in a statement: “After decades of secrecy in which the government hid this surveillance technology from courts, defense lawyers, and the American public, we are happy to see that the Justice Department is now willing to openly discuss its policies. Requiring the FBI, DEA, and other agencies to obtain a warrant before deploying these surveillance technologies—in most circumstances—is a positive first step.”

“However, this policy does not adequately address all concerns,” Wessler continued.

While federal agencies have been hesitant to disclose information about the technology, civil liberties groups like the ACLU have previously obtained documents through Freedom of Information Act (FOIA) requests that indicate widespread use of the devices in certain locations, such as Florida, New York, and Baltimore.

And while police departments often invoke counter-terrorism measures as justification for buying up Stingrays and related technology, reporting by the ACLU also found that they are used as a first resort in the investigation of minor crimes.

As Cardozo explains, “With only this policy shielding us, there’s nothing keeping warrantless Stingray evidence out of court, and therefore nothing to deter agents from behaving badly.”

Wessler added, “Disturbingly, the policy does not apply to other federal agencies or the many state and local police departments that have received federal funds to purchase these devices. In addition, the guidance leaves the door open to warrantless use of Stingrays in undefined ‘exceptional circumstances’ while permitting retention of innocent bystander data for up to 30 days in certain cases.”

“The DOJ should close any loopholes created by the exceptions and work to extend the policy to all federal agencies as well as state and local law enforcement that receive federal funding to buy the cell-site simulators,” Scott said.

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