Get court OK for eyes in the sky

Sometimes it can seem as if we’re playing a game of surveillance whack-a-mole.

Just days after the U.S. Senate voted to adopt the U.S. Freedom Act rather than renew the Patriot Act, ending the National Security Agency’s far-reaching collection of Americans’ telephone metadata, we learn from an Associated Press investigation that the Federal Bureau of Investigation has been using a small air force of single-engine aircraft to circle above 30 cities in 11 states to collect data from cell phones and take high-definition photos.

The surveillance, generally performed without a judge’s approval, uses a device, sometimes called by its brand name StingRay, that mimics a cell phone tower, prompting cell phones to transmit their phone number and individual electronic serial number. The device collects the information from suspects’ phones but also scoops up the same information from all phones in the area being surveilled. The FBI has employed some 115 planes, 90 of them mundane-looking Cessnas, the Associated Press reported, and have hidden the flights behind fake companies.

Legislation passed by the Washington state Legislature and signed by the governor in May requires police departments in the state to obtain a warrant before using such a device. Last summer The News Tribune in Tacoma learned that the Tacoma Police Department had used StingRay devices for six years without getting the approval of judges in the county, prompting this year’s legislation.

But another story by the Washington Post in May raises more questions about the FBI’s use of the cell tower simulators. The Post reported that in a handful of cases around the country, the FBI had told local law enforcement agencies not to reveal the use of the StingRay devices during trials, even suggesting that cases be dropped rather than acknowledge the use of the technology.

Usually, law enforcement agencies have to agree not to disclose use of the cell tower mimics before the federal agency loans the equipment. One bit of good news for Washington state residents is that the FBI says it also requires local law enforcement to get a court order before using the devices, keeping that in line with the new state law. It’s less clear that the FBI routinely requires that step of itself.

The U.S. Freedom Act, which passed with bipartisan support in the House before its more-tortured approval in the Senate, ended the NSA’s practice of vacuuming up data from all Americans’ phone calls, including numbers called, duration of calls and more. The collection of the data will be allowed when the NSA can get approval from a federal surveillance court. The practice was finally seen for what it was: intrusive and ineffective as an anti-terrorism tool.

U.S. Rep. Suzan DelBene, D-Wash., who represents the 1st District, joined 14 other House members this week in seeking a report from the FBI’s director regarding the agency’s surveillance flights.

Noting its success with the Freedom Act, the House might also consider modeling legislation after the state’s law to require warrants for such surveillance.

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