OPENING STATEMENT BY RANKING MEMBER LIEU AT SUBCOMMITTEE ON INFORMATION TECH. HEARING ON LAW ENFORCEMENT CELL PHONE USE

October 21, 2015
Press Release

FOR IMMEDIATE RELEASE             

Opening Statement:
Ranking Member Ted Lieu (CA-33)
Subcommittee on Information Technology
Hearing on Examining Law Enforcement Use of Cell Phone Tracking Devices

“Thank you Mr. Chairman for holding today’s hearing on federal law enforcement policies regarding the use of cell-site simulators in criminal investigations. 

“In September of this year, the Department of Justice (DOJ) announced its new policy on cell-site simulators, commonly known as Stingrays, aimed at enhancing privacy protections and establishing a consistent legal standard for obtaining authority to use a simulator.  Federal law enforcement will now be required to obtain a search warrant supported by probable cause, consistent with the protections in the Fourth Amendment.

“Earlier this week, the Department of Homeland Security (DHS) announced its department-wide policy, which similarly establishes a higher and more consistent legal standard of a search warrant requirement.

“At the time of the DOJ announcement, I released a statement calling the policy change a welcome first step and suggested we needed hearings in this committee on the matter. As new technologies empower law enforcement with unique capabilities, stringent rules are needed to safeguard against abuse of our civil liberties.

“The search warrant requirement establishes a consistent legal standard for federal authorities and will allow increased oversight of the use of cell-site simulators.  Even in those limited circumstances when a warrant is not required for use of a cell-site simulator, there are controls in place to help ensure that the exceptions are not abused. I look forward to the witnesses today providing more details on those exceptions and the safeguards put in place.

“These federal policies are needed to safeguard against abuse of individuals’ privacy and civil liberties.  The data collection and retention practices in the new policy are intended to enhance privacy protections—and they do so without undermining a law enforcement tool.

“I believe that these policy changes by DOJ and DHS, while a good step forward, could and should go further.  As the ACLU has noted, the policy guidance contains significant gaps—including overbroad exceptions to the warrant requirement, lack of notice to individuals impacted by Stingrays, and lack of transparency in reporting. Most notably, these agency policy changes do not meaningfully restrict state and local officials who use Stingrays in the majority of U.S. states that do not regulate them.

“I hope that state and local law enforcement agencies follow the lead of these federal policies and implement stringent privacy protections and legal standards. 

“In my home state of California, Governor Jerry Brown recently signed into law the California Electronic Communications Privacy Act, joining nine other states with laws that require state law enforcement to get a warrant before using cell-site simulators during criminal investigations.  The California law also requires a warrant before law enforcement can search meta-data or other electronic communications. 

“Finally, I note that the federal policy changes are reversible and they do not apply to all federal agencies.  As we have seen in the past, not all administrations or agencies have had respect for our civil liberties.  We should follow the lead of multiple states, including my own state, and enshrine these policies into law across all agencies to make clear that the Fourth Amendment needs to be respected and persons have the right to be free from unreasonable search and seizure by the government.

“I would like to commend Chairman Chaffetz, Ranking Member Cummings, Subcommittee on Information Technology Chairman Hurd and Ranking Member Kelly for their oversight work related to cell-site simulators.  In April of this year, the Committee sent letters to DOJ and DHS requesting information and briefings on the policies surrounding cell-site simulators, which increased the Committee’s visibility into the policies governing the use of this law enforcement tool.

“I would also like to thank the agencies appearing today for taking the time to testify about these important policy changes and their impacts on our civil liberties.   As with other policies regulating government use of technology for law enforcement and surveillance purposes, it is vital that we closely examine the rules to ensure we fully understand what is permitted.

“I look forward to reviewing policies related to the collection of geolocation and other electronic data to ensure that law enforcement tools are deployed consistently and with respect for privacy and civil liberties.”

Thank you, Mr. Chairman."

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