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New rules require feds to get warrant for cell phone surveillance

Civil liberties advocates welcome the change, but say the public will remain largely unaware if their information has been caught up in criminal investigations.

Federal law enforcement agencies will have to be more transparent about their use of cell-phone surveillance technology to track criminal suspects, according to a new policy released Thursday by the US Department of Justice.

The devices, called cell site simulators for the way they get nearby mobile phones to reveal their locations, are known for sweeping up large swaths of data on everyday people as part of criminal investigations. The new rules require federal agencies such as the FBI, US Marshals Service, and Drug Enforcement Administration to specify in a warrant request how the technology will be used and the safeguards that will be employed to protect the data of passersby who might unintentionally get caught in the surveillance.

"This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals' privacy and civil liberties," Deputy Attorney General Sally Quillian Yates said in a statement.

The Department of Justice made rules public Thursday requiring federal law enforcement to get a warrant before using a cell site simulator to collect the phone numbers of all cell phones in a given location. © JIM LO SCALZO/epa/Corbis

Civil liberties advocates cautiously cheered the new guidance Thursday, welcoming the tougher standards but saying more needs to be done to inform the public and ensure that law enforcement doesn't abuse the devices' data collecting power.

"This is certainly is a welcome development," said Linda Lye, an attorney with the American Civil Liberties Union in San Francisco, "but we still do have reservations about whether cell site simulators can be used constitutionally."

Previously, federal law enforcement officials were not required to get a warrant from a judge to use the devices. They would instead request permission through a pen register application, a process initially developed to approve the collection of outgoing call information from a criminal suspect's cell phone. The standard for the pen register was not as high, Lye said.

Lye called the new policy "very significant" but noted that these tougher standards won't apply to state and local law enforcement agencies, many of which also use the devices. Many of these agencies have obtained the simulators, also called Stingrays for the product sold by Harris Corp., through grants from the federal government.

Federal judges have not always known that they were approving cell site simulators, according to Brian Owsley, a law professor and former magistrate judge in Texas who used to be in charge of approving warrants and pen registers.

Owsley has published articles detailing the need for judges to learn more about this technology, and he welcomed the Justice Department's new requirements that federal law enforcement officials spell out how they will use it. He also welcomed the new rules for deleting the information of passersby not involved in a criminal investigation.

But he noted the new policy doesn't guarantee that criminal defendants will ever learn the device was used to track them and their associates' locations. That also means it's unlikely for the public to learn a cell site simulator was used in their vicinity, sweeping up their location as well.

"I'm still a little wary how transparent they're going to be," he said.