DOJ Must Disclose ‘Triggerfish’ Tracking

Federal prosecutors must disclose techniques for tracking an individual’s location through devices that mimic cell towers, known as triggerfish or stingray devices, a federal magistrate ruled Tuesday.

The decision is a partial victory for the American Civil Liberties Union in its fight for release of hundreds of pages of Justice Department documents under the Freedom of Information Act.

U.S. Magistrate Judge Maria-Elana James ordered release of at least 53 pages of documents that describe electronic tracking devices and cellular telephone information, including mobile tracking such as GPS and cell site simulartors suchas IMSI catchers, digital analyzers or triggerfish.

James rejected the government’s argument that the techniques were not generally known to the public and, if disclosed, could be used by potential law violators to evade detection and thus should be withheld on that basis.

“To the extent that potential law violators can evade detection by the government’s location tracking technologies, that risk already exists,” she wrote.

The triggerfish or stringray technology can mimic a cell tower but are small enough to be placed in a van and can be used to pinpoint the location of cell phones, smart phones or broadband internet cards and the people carrying them.  A mobile phone sends signals every seven to 15 seconds to cell towers whether a person is on the phone or not. The Stingray tricks the phone into connecting to it.

One privacy problem with Stingrays is that they are indiscriminate.  They locate not only the target cell phone, but also obtain information from all devices on the same network in a given area.

The potential privacy and Fourth Amendment issues around Stingray arose last year in the Arizona case of Daniel Rigmaiden, who was charged with alleged filing of false income tax returns.  The ACLU filed an amicus brief in the case opposing use of Stingray devices.

The ACLU and Bay Guardian sued in 2012 in San Francisco saying the DOJ improperly withheld information about Stingray use in response to their Freedom of Information Act request seeking records back to 2008.

The Justice Department said it withheld 548 pages as exempt from, or nonresponsive to, FOIA requirements, while releasing 43, according to its court filing.

“All of the material being withheld (in whole or in part) constitutes work product not subject to disclosure pursuant to FOIA,” wrote DOJ trial attorney Brad Rosenberg.

Among the items withheld was a 16-page template created by the U.S. Attorney’s office in the Northern District of California, used by prosecutors “when applying for a pen registers [sic] and trap and trace devices,” the filing states.  In addition, it withheld two pages of a Power Point presentation of the office’s legal analysis of issues that may arise over the use of location tracking devices, Rosenberg states.

James sided with the government on withholding the template and two pages of the Power Point.  She said it does not represent final agency opinions or statements of policy or interpretations that have been adopted by the DOJ, which have the force of law.  Rather, they involve legal issues that will ultimately be decided by the court, not the DOJ.

The template provides a format for Assistant US Attorneys in the Northern District to use when filing applications for use of a pen register and trap-and-trace devices.  The PowerPoint analyzes legal issues that may arise in connection with the use of the tracking devices.

DOJ’s interpretation of recent case law affects only strategies government lawyers will use to obtain court permission to use the devices, she said.

Case:  ACLU v. DOJ, No. 12-cv-4008MEJ



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