Secret Service cleared to track cellphones absent warrant

Stingrays are suitcase-sized items that capture data from cell phone towers set up by law enforcement. (Image credit: ABC 7 News screen grab)

Secret Service agents are now allowed to use cellphone-tracking technology, the devices known as Stingrays, without having to obtain warrants from a court, a Homeland Security official told Congress in a hearing about the federal law enforcement division's new policy.

Assistant secretary Seth Stodder said the devices, which don't capture telephone call conversations or text messages, would allow Secret Service agents to better protect the president and high-ranking political officials if agents don't have to go through the Fourth Amendment process of obtaining a judge's signature to approve the tracking of a specific person or suspect, the Associated Press reported.

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The Fourth Amendment prohibits the government from performing unreasonable searches and seizures and also requires government entities to obtain a warrant, signed by a judge, that shows probable cause.

Stodder said the Secret Service's new policy is akin to one the Justice Department unveiled in September giving the FBI the ability to use Stingrays without a warrant in certain circumstances. Specifically, Stodder said feds would have to get a warrant from a judge except in emergency "exigent circumstances" when time doesn't allow.

By way of example, he spoke of the recent Immigration and Customs Enforcement rescue of a 6-year-old kidnapping victim using Stingray technology.

But Stodder also said the Secret Service would be able to use Stingrays absent warrants in "exceptional circumstances," too, AP reported. In other words, Secret Service agents could bypass probable cause standards for tracking and surveillance if they received direct approval from "executive-level personnel" who work within their own agency, or for the U.S. attorney's office in various jurisdictions around the United States.

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Congressional members expressed concern such standards would give Secret Service agents a blanket ability to track whomever, whenever. But Stodder said the authority wouldn't be abused and not used in routine criminal cases.

"The key exception that we envision is the Secret Service's protective mission," Stodder said, AP reported. "In certain circumstances where you could have an immediate threat to the president and you have cryptic information, our conclusion in drawing the line between security and privacy here is to err on the side of protection."

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He also gave an example of when Secret Service would use the warrantless search power – when agents receive a "cryptic email or something like that" that threatened the president.

In cases like that, "you need to locate that person" quickly, and obtaining a warrant slows the search, he said, AP reported.

Stingrays scoop up data from all individuals, not just those targeted by law enforcement, leading civil rights and privacy activists to label them as unconstitutional because they grab information on American citizens who aren't even suspected of crimes.