Dude! I Think That Cell Tower is Spying on Us!

Cell tower near Oak Grove on LaVista is only .7 miles
from Briarlake Elementary School where they
have been trying to stop another one from
going up this May.

According to new Justice Department e-mails obtained by the American Civil Liberties Union (ACLU) of Northern California, and published on Wednesday, federal investigators have been routinely using “stingrays" to catch bad guys. A stingray is a device that can create a false cellphone tower, and allows authorities to determine a particular mobile phone’s precise location. Stingrays aren't new—law enforcement agencies nationwide are believed to have been using them for years.

But one e-mail in the new trove reveals something brand-new: that the Feds were not fully clear about the fact that they were specifically using stingrays (also known as “IMSI catchers”) when asking for permission to conduct electronic surveillance from federal magistrate judges.

A press representative from the United States Department of Justice did not respond to Ars’ request for comment.

Groups like the ACLU are concerned that unsupervised use of such technology can inadvertently collect information of people who are not suspected of any crime, nor under investigation.

Stingray-based surveillance

The ACLU intervened as an amicus in the case of a federal defendant, Daniel David Rigmaiden, who is facing dozens of federal charges of identify theft, mail fraud, and other charges stemming from an alleged massive fraudulent tax refund ring. Rigmaiden and another as-yet unnamed co-conspirator are in federal custody. A third man, Ransom Marion Carter, III, remains a federal fugitive.

Rigmaiden maintains his innocence, and argues that using a stingray without a warrant is unconstitutional.

“Before this e-mail, we did not know whether Rigmaiden was an outlier,” Linda Lye told Ars, explaining that little is known about the scope of stingrays’ use. Now it's clear they have been using stingrays as a matter of course.

As a result of this new disclosure, Lye has filed a motion to leave the new file with the court. Consequently, Rigmaiden filed a motion that the evidence resulting from the stingray—which allowed authorities to arrest Rigmaiden and search his apartment—be suppressed.

The Stingray II, a device that has been used by police to
act like a cell tower and intercept your calls.

“There's definitely a lot riding on [his] motion,” Lye added. “The government would have to establish that there was independent probable cause without using this device to know that this was the right apartment to search.” If they can't prove that, substantial evidence is likely to be suppressed, and that would throw a wrench into the prosecution.

Between 2005 and 2008, federal investigators allege that the trio (Rigmaiden, Carter and the unnamed person) filed over 1,900 fake tax returns online, yielding $4 million sent to over 170 bank accounts.

The ACLU received the group of e-mails last week as the result of a Freedom of Information Act request jointly filed with the San Francisco Bay Guardian, a local alt-weekly newspaper.

On Wednesday, Lye published (PDF) the e-mails, and will formally present them Thursday to a federal court in Arizona, where Rigmaiden’s case is ongoing.

Lye wrote that these e-mails confirm “the need for suppressing the evidence in the Rigmaiden case because it shows that the government was engaged in a widespread practice of withholding important information for judges, and that it did so for years.”

“We hope that the court sends the clear message to the government that it cannot keep judges in the dark. Judges are not rubber stamps—they are constitutional safeguards of our privacy.”

Read more here.