Is the FBI's latest Stingray document dump a big 'Fuck You' or a win for transparency?
The FBI has just released more than 5,000 pages of documents regarding its highly controversial "Stingray" cell phone location tracker, a device so secretive that the agency has forced local law enforcement to drop criminal cases rather than risk disclosing details about it at trial. But don't expect to open these documents with the intent of understanding, well, anything about how the FBI uses them—nearly everything is redacted.
Stingrays are used by the FBI and state and local law enforcement to track potential criminal suspects. Technically, Stingrays are called IMSI catchers, because they catch the "international mobile subscriber identity" of every cell phone within a certain radius of the device (usually a couple miles). This necessarily means that law enforcement is tracking everyone nearby when it uses one, often without a warrant even for the criminal suspect they're targeting.
Thanks to a series of lawsuits, Freedom of Information Act requests, and court decisions, we know that Stingray use is widespread, and we know that the FBI goes to great pains to hide their use.
Here, for instance, is a page typical of those snagged by Alex Richardson, a prolific Freedom of Information Act requester over at Muckrock (and sometimes contributor to Motherboard).
The documents consist of emails, contracts, memos, and agreements sent between the FBI and Boeing and the Harris Corporation, two manufacturers of the devices, as well as meetings minutes and correspondence sent to local and state law enforcement, which use Stingrays under the FBI's tight restrictions.
There are redacted training documents and manuals, legal explanations, emails, clerical nonsense, Powerpoint presentations to local law enforcement, and the like.
It's almost all redacted. It goes on like this for 5,000 pages.
The only pages left unredacted in their entireties are several pages of definitions, a couple news articles, and some emails with a Wall Street Journal reporter. The massive redactions led one Redditor to suggest that the documents are "basically a big 'Fuck you!' from the FBI to Muckrock."
That may seem to be the case at first, but is it really? Muckrock, the American Civil Liberties Union, and the Electronic Information Privacy Center, all of whom have been trying to get documents like these for years, don't think so. One person's "fuck you" is another person's hard-fought legal victory, and, furthermore, the documents aren't useless.
Muckrock's Shawn Musgrave, who also writes for Motherboard, called the documents "hard won" and said that, to a trained eye, it's not all gibberish.
"It's a staggering volume of documents, and quite a bit is redacted," he told me. "It requires a lot of combing through the documents line by line to understand just what's in there and what's missing."
Alan Butler, senior counsel at EPIC, has won similar troves of redacted Stingray files from the FBI thanks to various lawsuits and FOIAs. He told me that, unfortunately, this is just how the transparency process works with intelligence groups these days. Any documents are better than nothing at all.
By hiding the existence of Stingray for so long, at first it was impossible to FOIA anything. A FOIA lawsuit filed by Daniel Ringmaiden in 2012 (and the subsequent FBI decision to not challenge it) made the words "Stingray" and "IMSI catcher" lose their FOIA-exempt status.
EPIC's original FOIA was reprocessed, and the agency settled with the FBI on obtaining 500 pages of documents that were "much more coherent than before," Butler said.
With those words unredacted, it became possible to see the titles of PowerPoint slides and some words in emails and contracts.
"It became clear the FBI had been extensively using these and training others to use them. The number of iterations of partially unredacted Powerpoint slide decks, you see that they're training a lot of agents to do this, they're doing it with state and local law enforcement," Butler told me.
From there, people like Butler and Richardson know what they're fighting for and know what they're asking courts to force the FBI to unredact.
"If we had more information about Stingrays in the first place, we could have been filing more targeted requests," Butler said. "We had to tell them 'look, if you won't give us any initial information, we're going to have to ask for everything and comb through it all.' So you get a lot of repetition and excess material there, which is largely a result of the agency's inability to give context or direction on an issue people are clearly very passionate about."
Through these iterative processes and document dumps, we've taken a technology that remained almost entirely secret for nearly a decade and learned not only what it does and (sort of) how it works. We've also learned that the FBI regularly forces local police to drop cases against criminals instead of revealing more information about how Stingrays are used to collect evidence. The warrantless use of Stingrays has been ruled unconstitutional in two states.
"We know a lot about the FBI's approach to Stingrays now," Butler said.
We know about Stingrays, of course, not because the FBI wants us to, but because of the tireless work of the civil liberties crowd. And that's what these documents represent, too. There's no need to applaud the FBI for releasing this information, and the bureau certainly hasn't gone far enough to unredact portions of it, according to Nate Wessler an attorney who works on the ACLU's Speech, Privacy, and Technology Project.
"It does not seem credible to me that they can't release more of those kinds of records," Wessler told me. "Information about ongoing investigations, highly technical details of the devices, how they're put together, those kinds of things, redact them, fair enough. Information about whether they have to get a warrant or not, how they purge or do not purge bystanders data. They're clearly talking about those things."
"There's no conceivable reason why they shouldn't tell the public what their Fourth Amendment rights are protecting when they use these," he added. "The documents are not without value, but what the FBI has released is not adequate."
Correction 6/15/15: An earlier version of this article misstated why "Stingray" and "IMSI Catcher" no longer have FOIA-exempt status.