Guest Opinion: Congress tackles spying policies
Yet another government law enforcement surveillance practice was put under the microscope recently by the House Oversight and Government Reform Committee.
Thanks to the Edward Snowden leaks, we now know about government programs to spy on American citizens and collect bulk phone, text and pretty much all electronic communications data. More recent revelations include the U.S. Drug Enforcement Administration’s use of informants at airlines, parcel services and government agencies such as the Transportation Safety Administration and Amtrak to snoop on travelers, and the FBI’s use of Best Buy’s Geek Squad computer technicians as informants to poke around customers’ files and report suspicious activity. And in the waning days of the Obama administration, Attorney General Loretta Lynch signed an order making the NSA’s raw, unscrubbed spying data available to numerous other government agencies without a warrant.
None of these invasions of Americans’ privacy have received the congressional attention, much less the remedial action, needed to restore citizens’ Fourth Amendment rights, but the House Oversight Committee, in a yearlong investigation, did address yet another potential abuse of privacy: law enforcement’s use of cell-site simulators.
The devices, often referred to by brand names like Stingray and Hailstorm, mimic cell towers, forcing nearby phones to connect to them, thereby allowing everyone within a certain proximity to be tracked. Oftentimes, the devices are used without obtaining a warrant, and nondisclosure agreements with the FBI and manufacturers have, in many instances, forced prosecutors to drop criminal cases rather than reveal how their evidence was obtained.
According to the committee’s December report, federal law enforcement agencies possess at least 434 of the devices, and spent $95 million on them over a five-year period.
“While law enforcement agencies should be able to utilize technology as a tool to help officers be safe and accomplish their missions, absent proper oversight and safeguards, the domestic use of cell-site simulators may well infringe upon the constitutional rights of citizens to be free from unreasonable searches and seizures, as well as the right to free association,” the bipartisan staff report concluded. “Transparency and accountability are therefore critical to ensuring that ... the devices are used in a manner that meets the requirements and protections of the Constitution.”
It was only after the committee began its investigation, and about one month prior to a scheduled public hearing, that the Justice Department and the Department of Homeland Security changed their Stingray policies, which now generally require a warrant based on probable cause.
Law enforcement agencies at all levels of government should utilize these enhanced guidelines, the committee recommended, and nondisclosure agreements should be replaced with agreements that require agencies “to be candid with the courts on their use of cell-site simulator devices.”
Despite bitter partisan divides in Washington, this is an example of an issue on which freedom-loving politicians from both sides of the aisle should be able to work together. The alternative is the continued erosion of what little privacy we have left.