UPDATED // FBI Continues to Operate Spy-planes Without Warrants Despite Federal Rule Change

UPDATED // FBI Continues to Operate Spy-planes Without Warrants Despite Federal Rule Change

FBI Director James Comey

Updated on October 29th following revelations on surveillance technology capabilities.

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In a press release from September 3, the Department of Justice (DoJ) announced new “department-wide” rules for the operation of cell-site simulators such as the infamous Stingray device. These devices are commonplace during FBI investigations and are utilized by the aerial surveillance fleet which I disclosed independently on May 26 of this year, a full week before the Associated Press.

From the DoJ press release on Sep. 4th:
“The Justice Department today announced a new policy for its use of cell-site simulators that will enhance transparency and accountability, improve training and supervision, establish a higher and more consistent legal standard and increase privacy protections in relation to law enforcement’s use of this critical technology… law enforcement agents must now obtain a search warrant supported by probable cause before using a cell-site simulator.”

The policy went “into effect immediately,” yet despite this, over a month later (Oct. 22) FBI Director James Comey while testifying to a House Judiciary Committee hearing stated his position that he doesn’t believe the FBI needs warrants for such activity.

Wired revealed long held suspicions today about the capabilities of the Stingray:

“Now newly released documents confirm long-held suspicions that the controversial devices are also capable of recording numbers for a mobile phone’s incoming and outgoing calls, as well as intercepting the content of voice and text communications. The documents also discuss the possibility of flashing a phone’s firmware “so that you can intercept conversations using a suspect’s cell phone as a bug.”

The contradiction and violation of DoJ policy was obvious but somehow missed by the Associated Press (AP) reporter who covered both the new policy change as well as the FBI Director’s misguided testimony as well as AP editors. Director Comey therefore has brazenly admitted to Congress that his Bureau is actively subverting the Fourth Amendment as well as the Department of Justice when fielding these powerful surveillance tools.

The ‘FBI Sky Spies’ are active hundreds of times per month over densely populated American cities, near our international borders, small towns and other locations – even Disneyland. The North Star Post has been covering the activities of this surveillance operation since I broke the news online about the existence of the fleet.

The lack of transparency is so pervasive with this program that when recently reporting on an FBI surveillance plane used over Phoenix, presumably for hunting down the Arizona I-10 shooting suspect, the FBI officially denied the tail number belonged to the Bureau. This is to be expected but when Bureau aircraft are actively broadcasting their positions to public flight tracking websites and all 100 aircraft tail numbers have been confirmed publicly, how can such denials be considered anything less than mere obstructionism.

The aircraft are highly capable surveillance machines. The advanced optics used are capable of tracking all moving activity within a 36 square mile area and the cellphone surveillance technology is by definition bulk surveillance. The ability to track hundreds and even thousands of individuals, not suspected of any crimes (and save that information for later prosecutions as the AP reported), and retain that data for an undisclosed amount of time is an egregious violation of the Fourth Amendment.

Issuing explicit warrants for cellphone surveillance whenever a cell-site simulator is used seems quite obvious to Americans across the board. For Director Comey to “not believe,” as the AP reports, that warrants are required for this activity is frankly unacceptable. There’s a disturbing lack of transparency about the data that is vacuumed up from these flights and whenever the topic is brought up to the FBI, the American people are told that these aircraft are used only for “active investigations.”

If the FBI is going to hide unwarranted surveillance activity behind such language they should at least follow the rules set forth by the Department of Justice or face repercussions. Where are the checks and balances promised by the Constitution? How long are the American people going to permit a secret fleet of spy-planes to monitor their activity without demanding transparency into the judicial review process involved, if any, and further demand that their rights are protected by the simple practice of getting a warrant. While we’re at it, why not demand that the Associated Press who took credit for this story a week after it went viral online at least hold the FBI Director accountable when they caught him in a lie.

Add Techdirt to the list of publications acquiescing the FBI’s willful refusal to abide by the Fourth Amendment and the DoJ’s own policies as they report that, “aerial surveillance rarely implicates Fourth Amendment concerns.” Except of course, when those aircraft are spying on the content of private citizens cellphones and using those phones as surveillance bugs…

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