[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]










      EXAMINING LAW ENFORCEMENT USE OF CELL PHONE TRACKING DEVICES

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                         INFORMATION TECHNOLOGY

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 21, 2015

                               __________

                           Serial No. 114-69

                               __________

Printed for the use of the Committee on Oversight and Government Reform




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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee       CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
TIM WALBERG, Michigan                    Columbia
JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida                TED LIEU, California
MICK, MULVANEY, South Carolina       BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina          MARK DeSAULNIER, California
ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia                PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama

                    Sean McLaughlin, Staff Director
                 David Rapallo, Minority Staff Director
             Troy D. Stock, IT Subcommittee Staff Director
                    Sharon Casey, Deputy Chief Clerk
                 Subcommittee on Information Technology

                       WILL HURD, Texas, Chairman
BLAKE FARENTHOLD, Texas, Vice Chair  ROBIN L. KELLY, Illinois, Ranking 
MARK WALKER, North Carolina              Member
ROD BLUM, Iowa                       GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona               TAMMY DUCKWORTH, Illinois
                                     TED LIEU, California
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on October 21, 2015.................................     1

                               WITNESSES

Ms. Elana Tyrangiel, Principal Deputy Assistant Attorney General, 
  Office of Legal Policy, U.S. Department of Justice
    Oral Statement...............................................     4
    Written Statement............................................     7
Mr. Seth Stodder, Assistant Secretary, Threat Prevention and 
  Security Policy, U.S. Department of Homeland Security
    Oral Statement...............................................    12
    Written Statement............................................    14

                                APPENDIX

Questions for the Record.........................................    32
 
      EXAMINING LAW ENFORCEMENT USE OF CELL PHONE TRACKING DEVICES

                              ----------                              


                      Wednesday, October 21, 2015

                  House of Representatives,
            Subcommittee on Information Technology,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 2:52 p.m., in 
Room 2154, Rayburn House Office Building, Hon. Will Hurd 
[chairman of the subcommittee] presiding.
    Present: Representatives Hurd, Walker, Blum, Chaffetz, 
Connolly, and Lieu.
    Mr. Hurd. The Subcommittee on Information Technology will 
come to order. Without objection, the chair is authorized to 
declare a recess at any time.
    Today's hearing has a narrow but very important focus, 
Federal law enforcement agencies' use of cell site simulator 
devices, otherwise known as IMSI-catchers or stingrays.
    Today's hearing also touches on fundamental questions of 
privacy that we have grappled with since the founding of this 
country. When and how, can or should the government use 
technology to locate people? What notice or information, if 
any, must people be given about the technology used to locate 
them? To what extent must the government take into account the 
rights of innocent people who may be swept into a law 
enforcement dragnet? And how can we protect our civil liberties 
and defend the homeland at the same time? These are essential 
questions.
    Today's hearing won't give us a definitive answer to all 
these questions, but I hope that representatives from DHS, and 
DOJ, will be able to shed light on some of them and that this 
conversation will begin to reveal answers on others.
    Tracking a person's movements for an extended period of 
time can reveal almost anything and everything about them. What 
establishments they frequent, whether or not they are church 
goers, who their friends are, and their day-to-day hobbies. 
Geolocation is more than a record of where you are or were, 
it's a window into who we are.
    The Founders considered the ability of average citizens to 
keep things private from the government of such importance, 
that they built it into the Constitution. Thanks to the Fourth 
Amendment, we have the right to be secure in our persons, 
houses, papers, and effects against unreasonable searches and 
seizures. Simply put, unless, and until law enforcement can 
convince a judge to issue a probable cause warrant, they don't 
get to disrupt that security.
    Cell site simulator devices work by impersonating a cell 
phone tower and forcing all mobile phones within range into 
connecting with the device. Once a stingray connects with a 
cellular phone, it is able to identify that cell phone's unique 
identifying number and to identify the approximate location of 
the phone.
    There are also collateral consequences for the owners of 
non-targeted phones in the area. While searching for the target 
phone, the device will also make contact with other non-target 
cell phones that happen to be within range of the simulator 
device, even if those phones' owners are not suspected of 
criminal wrongdoing.
    After considerable congressional, public, and media 
interest, both DOJ and DHS decided to create agency-wide 
policies governing the use of these devices. While there may be 
some lingering concerns about the substance of the policies, 
which we will discuss here today, in balance the policies are a 
big step forward for DOJ and DHS, and a win for transparency 
and privacy advocates everywhere, as well as this is a win for 
the American people. What does worry me, however, is that it 
took the extra scrutiny to convince DOJ and DHS to make these 
changes, and I remain troubled that Federal law enforcement is 
still not embracing transparency the way they need to in 2015.
    I know, and I think, better than most, the need for the 
government to keep certain things secret from the public. 
Secrets in the wrong hands get people killed, but secrecy is a 
double-edged sword. Right now only about one in four Americans 
trust the Federal Government. If you do not have the trust of 
the people you are fighting for and with, you have nothing.
    I commend DOJ and DHS for their efforts here, but this 
can't be the exception. Law enforcement must continually strive 
to appropriately balance privacy and security issues in the 
digital age and they must continue to be transparent with 
Congress, and the public, about the choices and trade-offs we 
face.
    I hope today's hearing is a small step in beginning to 
bridge the gulf that has developed between our Nation's 
policies and the citizens they are meant to protect.
    Our witnesses today are Elana Tyrangiel, the Principal 
Deputy Assistant Attorney General for Office of Legal Policy at 
the U.S. Department of Justice, and Seth Stodder, the Assistant 
Secretary of Threat Prevention and Security Policy at the U.S. 
Department of Homeland Security. I thank the witnesses for 
being here today and look forward to their testimony.
    And now it's a pleasure to recognize the gentleman from 
California, Mr. Lieu, for 5 minutes for your opening statement.
    Mr. Lieu. Thank you, Chairman Hurd, for holding today's 
hearing to examine law enforcement's use of cell phone tracking 
devices.
    In September of this year, the Department of Justice 
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. Most Federal law enforcement will 
now be required to obtain a search warrant supported by 
probably cause, consistent with the protections of the Fourth 
Amendment.
    Earlier this week the Department of Homeland Security 
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 need committee hearings 
on this issue, and I am pleased Chairman Hurd is holding this 
hearing today.
    As new technology empowered 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 those limited circumstances when a warrant is 
not required for use of such a cell site simulator, there are 
controls in place that help ensure that the exceptions are not 
abused. I look forward to the witnesses today providing more 
details on what those exceptions are and the safeguards that 
are put in place.
    These further policies are needed to guard against abuse of 
individuals' privacy and civil liberties. Their data collection 
retention practices, and new policy are intended to enhance 
privacy protections, and hopefully 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 warrant requirement, lack of 
notice to individuals impacted by stingrays, and lack of 
transparency reporting. These agency policy changes also do not 
meaningfully restrict State and local officials who use 
stingrays and 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, for example, 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. The California law also requires a 
warrant before law enforcement can search metadata or other 
electronic communications.
    I also note that the Federal policy changes discussed today 
here 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 the Fourth Amendment or our 
civil liberties. We should follow the lead of multiple States, 
including my own, 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 Chair Hurd, and Ranking Member Kelly, 
for the 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 policies surrounding 
cell site simulators, which increased the committee's 
visibility into the policies governing the use of this law 
enforcement tool.
    I also want to thank the agencies appearing today for 
taking the time to testify about these important policy 
changes, and thank the witnesses especially for being here.
    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 being 
employed consistently and with respect for privacy and civil 
liberties.
    And I yield back.
    Mr. Hurd. Thank you, Congressman Lieu.
    Mr. Hurd. And thank you and Ranking Member Kelly.
    Mr. Lieu. Sure.
    Mr. Hurd. I yield back.
    Mr. Lieu. One more thing before I conclude. I would like to 
enter the ACLU letter for the record, if that's okay.
    Mr. Hurd. So moved.
    Mr. Lieu. Great. Thank you.
    Mr. Hurd. I will hold the record open for 5 legislative 
days for any members who would like to submit a written 
statement.
    Mr. Hurd. And now we will recognize our panel of witnesses. 
I'm pleased to welcome Ms. Elana Tyrangiel, Principal Deputy 
Assistant Attorney General at the Office of Legal Policy at the 
Department of Justice. Thanks for being here. And, again, Mr. 
Seth Stodder, Assistant Secretary of Threat Prevention and 
Security Policy at the U.S. Department of Homeland Security. 
Welcome to you both.
    And pursuant to committee rules, all witnesses will be 
sworn in before they testify. So please rise and raise your 
right hands.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Thank you. Please be seated.
    Let the record reflect that the witnesses answered in the 
affirmative.
    In order to allow time for discussion, please limit you 
all's testimony for 5 minutes, and your entire written 
statement will be made part of the record.
    Ms. Tyrangiel, we will start with you. You are recognized 
now for 5 minutes.

                       WITNESS STATEMENTS

                  STATEMENT OF ELANA TYRANGIEL

    Ms. Tyrangiel. Chairman Hurd, Ranking Member Lieu, and 
members of the subcommittee, thank you for inviting me to 
testify on behalf of the Department of Justice regarding the 
Department's policy guidance on the use of cell site simulator 
technology. We appreciate the opportunity to engage with the 
subcommittee on this important topic.
    Cell site simulators are critical tools that play an 
essential role in the Department's law enforcement and public 
safety missions. The Department has deployed this technology, 
for example, in efforts to locate and recover kidnapping 
victims, in operations to apprehend dangerous and violent 
fugitives, and in complex drug trafficking investigations. The 
Department uses cell site simulators only in the fraction of 
cases in which the tool is the most effective means of 
achieving a particular public safety objective, and as with any 
law enforcement capability, Department personnel must use cell 
site simulators consistent with constitutional and statutory 
requirements.
    As you know, in September the Department announced a new 
policy governing its use of cell site simulators. The policy 
applies Department-wide, establishing common principles for the 
use of cell site simulators in support of criminal 
investigations in the United States. It applies when Department 
personnel are working in cooperation with State and local law 
enforcement and it makes clear that cell site simulators may 
not be used to collect the content of any communication.
    The policy seeks to accomplish four basic objectives: 
first, to improve training and supervision, second, to 
establish a higher and more consistent legal standard, third, 
to enhance transparency and accountability, and finally, to 
increase privacy protections. I'd like to briefly discuss each 
of these.
    First, the policy sets forth a number of measures to ensure 
that law enforcement officers using cell site simulators are 
trained and supervised appropriately. Each law enforcement 
agency must establish training protocols, which must include 
training on privacy and civil liberties. Each agency must also 
name an executive level point of contact, who will be 
responsible for ensuring implementation of, and compliance 
with, the policy in each jurisdiction. Finally, any use of a 
cell site simulator must be approved in advance by appropriate 
personnel. The required level of seniority for the approval 
depends on the type of use involved.
    Second, the policy generally requires law enforcement 
agents to obtain a search warrant supported by probable cause 
before using a cell site simulator. There are two limited 
exceptions to the warrant requirement. The first is an exigent 
circumstances, a well established exception under Fourth 
Amendment law, where the needs of law enforcement are so 
compelling that they render a warrantless search objectively 
reasonable. Even in these circumstances, agents still must 
comply with the Pen Register statute. The second limited 
exception is for cases in which the Fourth Amendment does not 
require a warrant, and circumstances make obtaining a search 
warrant impracticable. Again, in these circumstances agents 
still would need to comply with the Pen Register statute.
    Third, the policy enhances transparency to courts by 
requiring law enforcement agents to make clear in their warrant 
applications that a cell site simulator may be used. Finally, 
the policy protects individuals' privacy interests by 
establishing consistent practices for handling the data 
obtained by these devices.
    As I have noted, the policy prohibits the use of cell site 
simulators to obtain the contents of any communication, nor do 
the devices obtain subscriber information. Even so, the policy 
establishes deletion requirements for the types of information 
that they do collect. Auditing programs in each agency will 
ensure that these requirements are followed.
    In sum, cell site simulators offer critical support of the 
Department's public safety and law enforcement missions, but as 
with other capabilities, the Department is committed to using 
the technology in a manner that is consistent with the 
Constitution and all other legal authorities while respecting 
individuals' privacy and civil liberties. We hope and believe 
the policy properly accomplishes these objectives while 
clearing up any misperceptions.
    The Department of Justice appreciates the opportunity to 
discuss our policy with the committee, and I look forward to 
your questions here today.
    Mr. Hurd. Thank you.
    [Prepared statement of Ms. Tyrangiel follows:]
    
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       Mr. Hurd. Mr. Stodder, you are recognized for 5 minutes.


                   STATEMENT OF SETH STODDER

    Mr. Stodder. Thank you. Chairman Hurd, Ranking Member Lieu, 
and distinguished members of the subcommittee, thank you for 
the opportunity to talk with you today about the Department of 
Homeland Security's policy for how our officers use cell site 
simulator technology in support of criminal investigations to 
protect the American public, and in some cases to locate and 
rescue victims of human trafficking, child exploitation, and 
kidnapping.
    In fact, in one recent case, ICE officers used the 
technology to rescue a 6-year-old girl who was held hostage by 
human smugglers in Arizona. And this technology is also used by 
the Secret Service to protect the President and other 
dignitaries under the service's protective umbrella.
    Needless to say, this is an important tool, but it's also a 
technology that must be used responsibly and consistent with 
our duty to protect the constitutional rights of the American 
people. In that spirit, DHS issued a new policy this week on 
the use of this technology by our officers. I believe the new 
DHS policy draws the right balance between enabling our 
officers to use this important tool and protecting the privacy 
and civil liberties of Americans.
    Cell site simulators allow DHS officers to identify and 
generally locate the mobile devices of the subjects and victims 
of active criminal investigations. They work by collecting 
signals from cellular devices within the cell site simulator's 
vicinity, usually within under 1,000 feet, and providing the 
operator the relative signal strength in the general direction 
of a subject's cellular device. A cell site simulator, though, 
is not a GPS locator. It does not provide precise geolocation.
    And a few other things worth highlighting here as well in 
terms of what cell site simulators can't do. They don't provide 
sending subscriber account information or any other personal 
information. And the cell site simulators used by DHS do not 
collect the content of any communications, no data, no emails, 
no text messages, no voice communications. No content.
    The new policy issued this week supports the continued use 
of cell site simulators by our officers, but it also 
strengthens management controls over the use of this 
technology. Let me highlight a few provisions that are similar 
to the DOJ policy.
    First, the new policy clarifies that before using cell site 
simulator technology, our officers generally must obtain a 
warrant from a court founded upon probable cause. There's no 
Supreme Court authority on this issue, but as a matter of DHS 
policy, we've concluded that requiring our officers to obtain a 
warrant, founded on probable cause, is the appropriate standard 
here. It draws the right balance between protecting the public 
and preserving the privacy and civil liberties of Americans. 
There are two narrow exceptions to this general rule.
    First, exigent circumstances, as my compatriot here 
discussed, the well-established exception under the Fourth 
Amendment in emergency cases. And, again, as with the DOJ 
policy, we require these circumstances, a showing of probable 
cause, but also the use of the Pen Register statute.
    Second, under the DHS policy, there is an exception for 
exceptional circumstances. It's another very specific 
exception, and in practice, really only applies to the Secret 
Service's protective mission. The Secret Service's duty is to 
investigate potential threats to the President or other 
protected persons, and often this involves very limited 
information in immediate timeframes. And sometimes the 
information's cryptic, it may not meet the probable cause 
standard that is required under exigent circumstances.
    But the threat is imminent, the President's nearby, the 
consequences of attack obviously are significant and high. In 
these circumstances, the Secret Service needs to locate an 
individual immediately in order to ensure the President's 
safety. This is a very limited and narrow exception to the 
general rule, and in these circumstances, DHS policy does not 
require probable cause or a warrant, but does require approval 
of both an executive within the Secret Service as well as the 
local U.S. attorney. The policy also requires a court order 
under the Pen Register statute or an emergency Pen Register.
    The policy also establishes several other key management 
controls that we believe also draw the right balance between 
protecting the public and protecting civil liberties and 
privacy rights. First, the DHS policy requires that 
applications for search warrants must include an affidavit 
explaining to the court what a cell site simulator is, how it 
works, why it will be used in a particular case, and the minor 
impact it might have on cellular devices in the area; no hiding 
the ball from the court.
    Second, the DHS policy draws a strong line on data 
retention. Bottom line, after a mission is done and the target 
is identified or located, the operator of a cell site simulator 
must delete all data from the device.
    Third, the DHS policy requires components to train and 
supervise their officers using the cell site simulators.
    In sum, we believe that the new DHS policy draws the right 
balance here between enabling our officers to use cell site 
simulator technology to keep dangerous criminals off the street 
and protect the public, and also making sure that we protect 
the civil liberties and privacy rights of the American people.
    Chairman Hurd, Ranking Member Lieu, and distinguished 
members of the subcommittee, thank you again for the 
opportunity to testify today. Look forward to answering any 
questions you might have.
    Mr. Hurd. Thank you for your opening remarks.
    [Prepared statement of Mr. Stodder follows:]
    
    
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    Mr. Hurd. And now it's a pleasure to recognize my friend 
and colleague from the great State of North Carolina, Mr. 
Walker, for 5 minutes.
    Mr. Walker. Thank you, Mr. Chairman.
    Ms. Tyrangiel, Mr. Stodder, thank you for being here.
    Mr. Stodder. Thank you.
    Mr. Walker. I commend both your Departments for requiring 
warrants for the use of these cell site simulators.
    Ms. Tyrangiel, you mentioned that these are now only used 
on a fraction of cases. Numeric-wise, statistics, do you have 
any data, when you say fraction of cases, what percentage are 
we looking at?
    Ms. Tyrangiel. So as I mentioned, these are critical 
technologies that are deployed in things like kidnappings and 
complex narcotics investigations and fugitive apprehensions. 
Those things do occur every day. But, the fraction of those 
cases in which a cell site simulator is deployed is small. I 
don't have numbers for you today, but I'm happy to get back 
with you.
    Mr. Walker. If you would get those numbers to us, because a 
fraction, may be broad definitions there.
    Mr. Walker. Mr. Stodder, do you have anything to add to 
that?
    Mr. Stodder. I have a similar response, in the sense that, 
I mean, they are a very important tool that's used by both 
Homeland Security investigations within ICE, as well as the 
Secret Service, and they are used in a very small fraction of 
cases, but I don't have the numbers with me here, but we can 
get those.
    Mr. Walker. Fair enough.
    Mr. Walker. Several of you mentioned--both of you mentioned 
as far as new policy, Mr. Stodder, and some things that changed 
September the 1st. Before that timeline, were you allowed to 
retain, or ascertain communication before the new policy was 
instituted? Ms. Tyrangiel?
    Ms. Tyrangiel. This policy makes clear that devices must be 
configured not to collect content.
    Mr. Walker. Before September 1, did you collect other 
content?
    Ms. Tyrangiel. I will have to get back to you about what 
the policy said, but--I'll have to take that back.
    Mr. Walker. Okay. Mr. Stodder?
    Mr. Stodder. Well, this is the first overarching DHS policy 
on the use of cell site simulators, but the components before 
this policy certainly used cell site simulators but did not use 
them to collect content at all. I mean, literally the 
technology is not configured to collect content, at least the 
technology that DHS----
    Mr. Walker. Well, I'm glad to hear that we have new 
policies. I do have some trepidation about what we were 
collecting before then. I hope that we can get that information 
back as well.
    Mr. Stodder. Sure.
    Mr. Walker. It leads me to the question, would it be better 
to enact legislation to make sure these policies are clear, 
because my concern is if you have new agency department heads, 
who makes the standard, who makes the rules there? Ms. 
Tyrangiel, would you like to comment on that?
    Ms. Tyrangiel. Sure. Because we have just implemented these 
policies and because we are about to see how they are 
implemented and how they work, we would recommend that we 
evaluate how they are going in practice before anything is 
codified. On the other hand, anything you wish to work on, we 
would be happy to work on you with.
    Mr. Walker. Mr. Stodder, would you----
    Mr. Stodder. I'd have a similar response, in the sense 
that, I mean, we obviously just issued our policy this week. We 
feel very good about the policy and strong about the policy. 
Our operating components definitely believe that the policy 
draws the right balance between enabling the use of these 
important technologies and privacy, but certainly if this 
committee were to walk down the road of considering 
legislation, we would obviously work with the committee on it.
    Mr. Walker. If the warrant requirements for these cell site 
catchers, if you will, both the DOJ created--the DOJ created an 
exception for circumstances, okay, where the law does not 
require a search warrant and circumstances make obtaining a 
search warrant impracticable. Can you talk a little bit about 
what those impracticable circumstances--I mean, that's a kind 
of a broad definition. Would you mind expounding on that, Ms. 
Tyrangiel?
    Ms. Tyrangiel. Yeah. This exception is intended to be 
deployed very rarely, very rare circumstances. And, in fact, 
from the Department's perspective, this is more like a safety 
valve in the policy, in the event there are circumstances that 
we could not foresee when we went to a flat warrant 
requirement.
    So in order to use that exception even now, there would 
need to be no problem under the Fourth Amendment, and it would 
need to be impracticable to get a warrant, and there would need 
to be a series of high level sign-offs in order to use that 
exception, including a high level agency official, the U.S. 
attorney in a jurisdiction, and a deputy attorney general in 
the criminal division.
    And any exceptions that are granted under this provision 
will be tracked by the criminal division, so that if there is a 
set of circumstances that is emerging and the policy needs to 
be tweaked or adjusted, we can do that.
    Mr. Walker. Sure. So each one of those circumstances, 
you're telling me that there's a consistency there that all 
high levels sign off no matter what the situation might be?
    Ms. Tyrangiel. That's correct. In order to be able to use 
that exception, all of those people would need to sign off.
    Mr. Walker. I'm concerned about this exception and maybe 
the augmentation of it or the growth of it where--good 
intentions here, but I would assert if we are not able to put 
some teeth into this, that it could be a very broad definition.
    Mr. Stodder, I've got about 15 seconds. Did you want to add 
anything to that?
    Mr. Stodder. Well, I mean, the analogous exception of the 
DHS policy is the exceptional circumstances exception, which as 
I think I've discussed, it's--I mean, the main focus of that 
exception, at least within DHS, I mean, without putting any 
conceivable other option, is the Secret Service protective 
mission, in the sense of where it is an exceptional 
circumstance where probable cause may not necessarily make 
sense in that context, so the Pen Register applies.
    Mr. Walker. Okay. My time has expired. Thank you, Mr. 
Chairman. I yield back.
    Mr. Hurd. Thank you, Mr. Walker.
    I'd now like to recognize Ranking Member Lieu for 5 
minutes.
    Mr. Lieu. Thank you.
    I have a question about the capabilities of these 
stingrays, not how they can be configured. Just in terms of 
capability, can they collect content or they cannot?
    Ms. Tyrangiel. As I said, our policy requires that they be 
configured not to collect content. The kind of configuration 
we're talking about, and understanding that I am a lawyer, not 
a technologist, is the software configuration, not an on and 
off switch where someone could switch it on and off.
    Mr. Stodder. I'm similarly hampered by being a lawyer, not 
a technologist, but, I will say the DHS--I mean, the cell site 
simulators that DHS agencies use, both HSI as well as Secret 
Service, are absolutely configured by the vendor not to collect 
content. I mean, I couldn't tell you one way or the other as to 
whether they could be, theoretically could be configured to 
collect content, but I know for a fact that the cell site 
simulators that DHS uses do not collect content and cannot 
collect content.
    Mr. Lieu. Okay. If you could get an answer back as to 
whether they have the capability to----
    Mr. Stodder. Sure.
    Mr. Lieu. --not just----
    Mr. Stodder. We can get back to you on that in terms of 
whether there are cell site simulators on the market that 
could, but DHS does not as a matter of policy.
    Mr. Lieu. Okay. I share some of the same concerns of Mr. 
Walker regarding the exigent circumstances exception, but 
specifically I had one about the Secret Service.
    Mr. Stodder. Yep.
    Mr. Lieu. Is it a blanket exception for the entire Secret 
Service?
    Mr. Stodder. Well, no. I mean, it's an exception within the 
DHS policy that--I mean, and the key exception that we can 
envision is the Secret Service's protective mission. So it's 
not an exception for the Secret Service, but in certain 
circumstances where you could have an immediate threat to the 
President and you have cryptic information. Our conclusion in 
terms of drawing the right balance between security and privacy 
here, is to err on the side here of protection.
    Mr. Lieu. But why wouldn't they just fall under exigent 
circumstances?
    Mr. Stodder. Well, because you could have a circumstance 
where--because the issue with the exigent circumstances 
exception is that the exigent circumstances exception still 
requires probable cause. And so you could have a circumstance 
with the Secret Service where--I mean, I'm trying to think of a 
fact situation where it could arise, but where you might have a 
cryptic email or something like that, or something that 
indicates there's a threat to the President or to a 
distinguished person within the Secret Service protective 
umbrella where the Secret Service would not have the 
capability, or the time, or enough information to determine 
whether there's probable cause, but you need to locate that 
person before there's an attack on the President.
    Mr. Lieu. I see. So let's say it's dealing with the Secret 
Service in a counterfeiting case. That exception would not 
apply?
    Mr. Stodder. No, that would not apply. In a criminal 
investigative case, like a counterfeiting case, absolutely not, 
it would not apply. I mean, in a normal, I can't imagine a 
circumstance where this exception would apply in a 
counterfeiting case.
    Mr. Lieu. Now, it looks like there's also an exception for 
the Foreign Intelligence Surveillance Court, is that correct, 
in the policy?
    Ms. Tyrangiel. The Department's policy applies to the use 
of cell site simulators in furtherance of criminal 
investigations inside the United States. There is a note, a 
footnote in the policy that discusses national security 
investigations that says, when working under FISA, the 
Department will make probable cause-based showings and make 
appropriate disclosures to the court in a manner that is 
consistent with the policy.
    Mr. Lieu. Okay. What does that mean in terms of----
    Ms. Tyrangiel. Well, of course FISA and national security 
authorities are different than criminal authorities, but the 
policy does indicate via footnote that attorneys will make 
probable cause-based showings to the court and that they will 
make appropriate disclosures. And, of course, there is a whole 
section in the policy about transparency and the importance of 
transparency and letting the court know of the technology to be 
used. But because those authorities are different, different 
protocols, different structure, and statutes, they are not 
further defined.
    Mr. Lieu. Could the Department just apply it the same way 
with the FISA court? Why would it have to be applied 
differently?
    Ms. Tyrangiel. That is a function of a different court and 
a different procedural setup based on FISA and that authority 
particularly, and so it's not the same system or the same 
authorities, and therefore, they're just slightly differently 
oriented.
    Mr. Lieu. Okay. In non-FISA courts if there's a case that 
is brought, the ACLU letter references information where 
prosecutors will not disclose a stingray was used, in fact, 
they will say it was a confidential source. Do you have any 
thoughts on that or can your policy say that ought to be 
disclosed rather than using the, quote-unquote, confidential 
source phrase?
    Ms. Tyrangiel. I'm not familiar with the ACLU letter. I can 
tell you that the policy has a detailed section on transparency 
that the prosecutor must let the court know about the 
technology to be used, how it will be used, the disruption it 
might cause, to ensure that--should the court have questions or 
that the court knows in advance about this technology.
    Mr. Lieu. So I've entered the ACLU letter in the record. 
I'll also send it to you. If you don't mind, if you could 
respond to the issues they raised, that would be terrific.
    And then if I could take one more question. In terms of how 
you think this is going to be applied, how are you training 
your folks on this?
    Ms. Tyrangiel. Implementation is ongoing and the components 
are actively working on ensuring that all the pieces of this 
are falling into place.
    Mr. Lieu. And what about local and State law enforcement? 
Do you do any guidance, any training?
    Ms. Tyrangiel. So I can tell you that a couple of--
anecdotally, that a couple of State and local agencies have 
asked about this policy. We are hopeful that it will serve as a 
model. Beyond that at this time, that's all the information 
that I have.
    Mr. Lieu. Great. Thank you. I yield back.
    Mr. Hurd. Thank you. I'll recognize myself for 5 minutes.
    Let's pick up on Congressman Lieu's line. So when local law 
enforcement, they can attain these devices without DOJ's 
permission? Is that correct?
    Ms. Tyrangiel. They can buy and operate this equipment on 
their own, yes.
    Mr. Hurd. Is DOJ planning to require State and local law 
enforcement agencies to adhere to DOJ's policy or have similar 
policies of their own?
    Ms. Tyrangiel. So this policy, the Department's policy, 
will apply to State and locals when we are working together and 
when we are assisting State and locals. It is complicated and 
difficult beyond that for us to oversee the State and locals, 
but as I said, we are really hopeful that this will serve as a 
model for State and locals as they think about their own 
policies.
    Mr. Hurd. Does DOJ provide any of these stingrays to local 
law enforcement?
    Ms. Tyrangiel. Not that I'm aware of, but I would want to 
double-check and get back to you.
    Mr. Hurd. Yeah. My question there is, if DOJ is providing 
the equipment to local law enforcement, then can they be bound 
by the rules of DOJ in the operation of this? That would be my 
question.
    Ms. Tyrangiel. I'd be happy to take it back.
    Mr. Hurd. Great.
    Mr. Hurd. And, Mr. Stodder, can people apply for this 
within DHS?
    Mr. Stodder. Well, I mean, you're asking in terms of the 
State and locals. I mean, similarly the DHS policy says that if 
DHS officers are working on a case with State and local 
governments, I mean, certainly the DHS policy applies in that 
circumstance to the DHS officers in that task force sort of 
environment.
    DHS does not actually give or loan this equipment to State 
and local law enforcement. DHS does not do that. And the State 
and local governments can purchase this equipment on their own 
using their State funds, and consistent with their own State 
laws and the Federal Constitution, under their own police 
powers under the Constitution.
    The issue here I think you're getting at perhaps is 
certainly State and local governments can apply for Federal 
grant funds from FEMA. And the Federal Government under FEMA, 
and I believe the Justice Department as well, I mean, we give 
grant monies to the States, and then the States, and then 
subgrantees to local governments can purchase equipment that is 
on an authorized equipment list, and certainly some States 
could conceivably purchase cell site simulator technology.
    And our position on that essentially is--I mean, our 
standard terms and conditions in grant funding to the States 
and local governments is essentially to--you know, they have to 
apply--they have to use the technologies that they buy 
consistent with the law and consistent with the Constitution, 
but we haven't imposed essentially our internal DHS policies in 
that context or other contexts on the State and local 
governments with regard to the grant dollar--with regard to the 
equipment that they buy using Federal grant dollars.
    Mr. Hurd. So, just so I'm clear, I'm a local law 
enforcement, let's say I'm a county sheriff----
    Mr. Stodder. Yep.
    Mr. Hurd. --I apply for Stonegarden funds, I get them, I 
buy an IMSI-catcher, and I would not be bound by DHS policy on 
the use of said IMSI-catchers?
    Mr. Stodder. Yeah, correct. You would not be bound by DHS 
policy with regard to the use of cell site simulators yourself. 
And essentially, that's correct.
    Mr. Hurd. So is there any effort on the way to have folks 
using Federal funds, using DHS funds or DOJ funds, to adhere to 
the rules and regulations? Because aren't there some 
significant nondisclosure agreements that are signed by local 
law enforcement? Is it with you all or with the companies when 
it comes to this issue?
    Mr. Stodder. Not with the Department of Homeland Security. 
We do not require those kinds of nondisclosure agreements when 
the State and local governments, say, were to use something 
like that. And the question of whether the Department of 
Homeland Security would essentially require the use--
essentially State and local governments using of Federal funds 
to, you know, the City of Bakersfield or whatever else, to 
apply internal DHS policies, we have not sort of determined 
that that would be the right approach, for any number of 
reasons from federalism.
    But also from the perspective of you're talking about a 
$1.5 billion grant program with 56 grantees and thousands of 
subgrantees, and the ability to track the use of all these 
subgrantees of all this equipment, I mean, I think that would 
be--it would be a significant, you know, consideration to think 
about.
    Mr. Hurd. Thank you.
    Yes, ma'am.
    Ms. Tyrangiel. I'm sorry.
    Mr. Hurd. Yeah. The same question. I believe some local law 
enforcement in terms of NDAs with the FBI on some of the use of 
this technology. Is that correct, and how does that work?
    Ms. Tyrangiel. Yeah. So the nondisclosure agreements that 
you're referring to are agreements between the FBI and State 
and local law enforcement. Those agreements are intended to 
protect particularly sensitive information about the 
operations, the operation of the technology, the capabilities 
of the technology. They're not meant actually to preclude more 
transparency in terms of disclosing that they've been used in 
any particular case, and actually FBI is revising those 
agreements now. But as to the question about how they intersect 
with State and local use, traditionally they're not a means to 
oversee the actual use of the equipment, rather they're an 
agreement about the sensitivity of the information involved.
    Mr. Hurd. Okay. Thank you.
    I'm going to now recognize Mr. Lieu for an additional 5 
minutes.
    Mr. Lieu. Thank you.
    Let me follow up on Chairman Hurd's questions about the 
FBI. So I have a letter from April 13, 2015, written from the 
Federal Communications Commission to Senator Bill Nelson. My 
understanding, according to this letter, is that for these 
devices to be used by law enforcement, they have to be 
certified by the FCC, and the commission places two conditions 
on them: one is that these devices will be used in fact by law 
enforcement, and second, that State and local law enforcement 
agencies must coordinate in advance with the FBI the 
acquisition and use of the equipment.
    Is there any reason we couldn't, consistent with DOJ 
policy, ask the FBI to say, okay, if you're going to use this 
equipment, you need to use it consistent with our FBI 
standards, which are DOJ standards, which is you need to get a 
warrant before you use it?
    Ms. Tyrangiel. So as I was mentioning, these agreements 
that you referenced to are--with respect to the sensitivity of 
the information and agreements about how to manage that 
sensitivity, they may be more or less effective at managing and 
effecting oversight over the use of this technology, but it is 
something we're happy to look at.
    Mr. Lieu. Thank you.
    And then, Mr. Stodder, I forgot to ask you the first time.
    Mr. Stodder. Yeah.
    Mr. Lieu. We'll send you the ACLU letter as well----
    Mr. Stodder. Thank you.
    Mr. Lieu. --and if you could respond to some of the issues 
that they raised, that would be great as well.
    Mr. Stodder. Be happy to do that.
    Mr. Lieu. So I have a different line of questioning, which 
is, these policies don't apply to the NSA or CIA or other 
agencies other than your own, correct?
    Mr. Stodder. Correct.
    Mr. Lieu. What happens if the FBI is doing an operation 
with local law enforcement? Can they sort of say, hey, you 
local law enforcement, you go use the stingray and do what we 
can't do? Is there anything in policy that keeps them from 
doing that?
    Ms. Tyrangiel. If I'm understanding your question 
correctly, if the FBI is working with the locals and using a 
cell site simulator, this----
    Mr. Lieu. Well, the FBI is not using it, but the local----
    Ms. Tyrangiel. Oh.
    Mr. Lieu. --person is----
    Ms. Tyrangiel. As in--yeah, they get around this policy----
    Mr. Lieu. Correct.
    Ms. Tyrangiel. That is not permitted.
    Mr. Lieu. Okay. Thank you.
    In terms of these other agencies, what law enforcement 
other than--we'll take out the intelligence agencies, but what 
other law enforcement would not be covered by the two policies 
here today?
    Mr. Stodder. Well, it would be law enforcement that's not 
part of the Department of Homeland Security or the Department 
of Justice, so presumably the Park Police, or I'm informed of 
the--I guess the Government Printing Office potentially has a--
--
    Mr. Lieu. Correct.
    Mr. Stodder. Yeah. So are there other law enforcement 
agencies that would not be covered?
    Ms. Tyrangiel. I'm not aware of which other law enforcement 
agencies would even have this capability.
    Mr. Stodder. Yeah.
    Ms. Tyrangiel. So----
    Mr. Lieu. And then you had mentioned earlier there's going 
to be tracking of the number of times that these devices are 
used, or only when they're used without a warrant?
    Ms. Tyrangiel. No. The policy requires a tracking of 
numbers annually of how many times they're used and how many 
times they're used in emergency circumstances in addition to 
the requirement under the exceptional circumstances exception 
to track any and all exceptions under that provision of the 
policy.
    Mr. Lieu. And that's both agencies?
    Mr. Stodder. Correct.
    Mr. Lieu. And who gets this information?
    Ms. Tyrangiel. The agencies are required to track and 
collect their use, and the criminal division tracks the number 
of exceptions granted.
    Mr. Lieu. Would this committee get that information or 
could this committee get that information? Is it public?
    Ms. Tyrangiel. We'd be happy to work with you on any 
requests you have for that information.
    Mr. Lieu. Okay. Great. Thank you.
    Mr. Stodder. Similarly with the DHS.
    Mr. Lieu. Thank you. I yield back.
    Mr. Hurd. I'd like to recognize the gentleman from Iowa, 
Mr. Blum, for 5 minutes.
    Mr. Blum. Thank you, Chairman Hurd.
    And thank you, Ms. Tyrangiel, is it?
    Ms. Tyrangiel. Tyrangiel.
    Mr. Blum. Tyrangiel, and Mr. Stodder for appearing here 
today. Appreciate it very much. I've got about 5 questions to 
each one of you, so if you can be quasi brief, we can get 
through this in 5 minutes.
    First question, does your agency take the position that it 
does not, does not need a warrant to use the device to track a 
known suspect, a known suspect, in public?
    Ms. Tyrangiel. Our agency has gone to a policy that 
requires a warrant with two narrow circumstances for 
exceptions. So, we are now using a warrant as a general matter 
except in two circumstances. And I----
    Mr. Blum. And those are?
    Ms. Tyrangiel. Exigent circumstances that would satisfy the 
Fourth Amendment warrant exception and exceptional 
circumstances where the Fourth Amendment is not implicated and 
getting a warrant is impracticable. So even if the Fourth 
Amendment isn't implicated, if it's not impracticable to get a 
warrant, agents must get a warrant.
    And if there are exceptional circumstances, that we expect 
to occur very rarely, then there would need to be sign-off from 
a high level agency official, the U.S. attorney, and a deputy 
assistant attorney general from the criminal division. And even 
in such circumstances----
    Mr. Blum. To not get a warrant?
    Ms. Tyrangiel. Exactly.
    Mr. Blum. What were those three individuals, a high level--
--
    Ms. Tyrangiel. A high level agency official within the law 
enforcement agency, the U.S. attorney in the district, and the 
deputy assistant attorney general in the criminal division.
    Mr. Blum. Is it all three or any of those three?
    Ms. Tyrangiel. All three.
    Mr. Blum. All three to not get a warrant?
    Ms. Tyrangiel. That's right.
    Mr. Blum. Okay.
    Mr. Stodder?
    Mr. Stodder. As a matter of DHS policy, similarly to the 
DOJ policy, DHS policy, we have determined that before the use 
of cell site simulators, that we will require probable cause in 
a warrant in most cases, with two exceptions, similar 
exceptions to the Justice Department: one is exigent 
circumstances, so involving, you know, well-recognized Fourth 
Amendment exception if there's life and limb at issue, et 
cetera.
    And the second is exceptional circumstances, which in the 
DHS context is--the main example here would be the Secret 
Service protective mission with regard to protection of the 
President, which is not a criminal investigative mission, but 
it's where probable cause may not necessarily be the right 
standard in that context.
    And, again, we also have, you know, significant sign-off 
where the Secret Service believes that it needs to have a cell 
site simulator but does not have probable cause or won't get a 
warrant, but we would need sign-off from a senior level 
executive within the Secret Service as well as the local U.S. 
attorney. And even there, we would also apply the Pen Register 
statute essentially to obtain a court order to use the 
technology or in an emergency Pen Register under the Pen 
Register statute.
    Mr. Blum. So both of those signatures required or just one 
of the two?
    Mr. Stodder. Both.
    Mr. Blum. Both. Well, what about when the suspect is the 
subject of an arrest warrant? Is there any change there?
    Ms. Tyrangiel. No. A search warrant is still required under 
the policy, again, barring exigent circumstances that would 
satisfy the Fourth Amendment's warrant exception or the 
exceptional circumstances provision that I described to you 
that requires all that sign-off and fitting in with particular 
circumstances.
    Mr. Stodder. Same with DHS.
    Mr. Blum. Mr. Stodder. Tell me if this is correct or not. I 
believe I have it correct. Each agency's policy requires 
deletion of the data at least once every 30 days?
    Ms. Tyrangiel. So our policy----
    Mr. Blum. Is that correct?
    Ms. Tyrangiel. Yes. And it also requires deletion as soon 
as the mission is completed. So if it's before 30 days, in the 
circumstance where you're trying to identify an unknown phone, 
it gets deleted immediately. It doesn't wait until the 30 days.
    Mr. Stodder. And the same is true under the DHS policy. It 
requires deletion immediately after the mission.
    Mr. Blum. Right after the mission?
    Mr. Stodder. Yeah.
    Mr. Blum. Now, the government's great at making laws, 
setting rules and regulations. I'm from the private sector. 
Where we're weak is follow-through.
    So my question is what mechanism is there in place to 
ensure that what you just said actually happens?
    Ms. Tyrangiel. So there are a couple provisions in the 
policy that address this: one is there needs to be an auditing 
procedure put in place by each agency to make sure that the 
data is deleted consistent with the policy; and second, the 
policy requires each agency to designate an executive level 
point of contact in each jurisdiction to ensure that the 
policy's implemented and complied with.
    Mr. Blum. Mr. Stodder?
    Mr. Stodder. The DHS policy is identical in that respect.
    Mr. Blum. So is this currently in place or is this----
    Mr. Stodder. Yes.
    Ms. Tyrangiel. The policy is effective immediately and----
    Mr. Stodder. In place.
    Mr. Blum. And out of curiosity, what will the punishment be 
if this policy is not followed? Because I've sat in on enough 
of these hearings and have people sit in your chairs where 
things, you know, weren't followed through on, things were 
messed up, they were against the rules, the IG says they need 
to change, and they don't change, and they receive bonuses 
instead of being terminated. So what happens if the rules are 
not followed?
    Ms. Tyrangiel. As with any technology procedure within an 
agency, if individuals violate their agency's orders, they are 
accountable to their agencies and subject to discipline.
    Mr. Blum. Mr. Stodder?
    Mr. Stodder. And the same thing is true in DHS. I mean, 
each component will have a structure essentially to hold their 
employees accountable for not using technologies in a way 
that's authorized by DHS policy, and certainly DHS headquarters 
would have a similar sort of capability of management response.
    Mr. Blum. So you're saying it's the Department's policy?
    Mr. Stodder. Yes.
    Mr. Blum. Yeah. I hope you will tell us today at this 
hearing that if someone doesn't follow these policies and 
somebody's privacy rights are in question, that you're going to 
take the appropriate actions----
    Mr. Stodder. Yes.
    Mr. Hurd. --if it's----
    Mr. Stodder. Department----
    Mr. Blum. Go ahead.
    Mr. Stodder. At the Department of Homeland Security it 
certainly--you know, the component leaderships would take the--
whatever appropriate action would make sense under the facts 
and circumstances of that case.
    Ms. Tyrangiel. Same here.
    Mr. Blum. Great. I think my time is up. I yield back, Mr. 
Chairman. Thank you very much.
    Mr. Hurd. I have a very basic question before we end. Is 
the private use of IMSI-catchers, is that illegal?
    Ms. Tyrangiel. I don't know the details of sort of how the 
manufacturers market themselves or to whom they can provide 
this, whether it is illegal. I can speak, you know, obviously 
to the government use and to these agreements between the State 
and locals and the FBIs, but not the private use.
    Mr. Stodder. Yeah. I'm similarly hampered by lack of 
knowledge on that in this sense, but we are happy to get back 
to you on that.
    Mr. Hurd. Great. Thank you.
    I apologize we started late today, but this is an important 
issue of being able to protect our civil liberties and ensure 
that law enforcement has the tools they need in order to do 
their jobs.
    I think the plans have come a long way over these past few 
months. And we look forward to the additional information that 
we requested and having further conversations on this, and 
looking forward on how we can have some legislative fixes to 
this across the Federal Government.
    I appreciate you all's time here today. And without--I 
thank you for taking your time to appear.
    And if there's no further business, without objection, the 
subcommittee stands adjourned.
    [Whereupon, at 3:43 p.m., the subcommittee was adjourned.]


                                APPENDIX

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