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Dirt Boxes: The Newest Government Tool for Warrantless Privacy Invasion

That plane flying overhead could very well be scooping up your most intimate data, especially if you live in Texas. The Texas National Guard has reportedly equipped two of its RC-26 military aircraft with cell phone data-collecting dragnets, known as dirt boxes. The ability of government agencies to add new modifications to their aerial surveillance capabilities without any real oversight should sound an alarm for all Americans, not just those who live in the Lone Star State.  

Dirt boxes are one of the top cell site simulators, devices that mimic cell towers and fool phones into sharing data with them. While the Department of Justice (DOJ) has advised agencies not to collect the actual content of phone calls or messages without warrants, the simulators have the ability to do so. Additionally, these tools can record and listen to calls as they occur, block phones from sending and receiving calls, and collect metadata and geolocation data, allowing law enforcement officials to track the exact location of any phone user in the area. Just the metadata alone can paint a very specific picture of the individual sending it.

“They indiscriminately gather information on countless innocent people who have the misfortune of being in the vicinity of a suspect target,” said Stephanie Lacambra, criminal defense staff attorney at the Electronic Frontier Foundation. “They also disproportionately burden minority communities.”

The D.C. Court of Appeals recently ruled that law enforcement use of cell site simulators—which were originally intended for terror and military investigations—without a warrant violates Americans’ Fourth Amendment rights. However, law enforcement agencies around the country have routinely flouted such orders, deploying the devices in a variety of non-terror and non-military cases without warrants. For example, the NYPD has used cell site simulators without a warrant more than a 1,000 times since 2008.

Further complicating matters, the Texas National Guard is not actually a law enforcement agency, but a military entity, so it’s unclear whether privacy protections apply to simulators under their control.

“Because the National Guard is under the jurisdiction of the Department of Defense, they are not necessarily bound by the policies regulating cell site simulator use promulgated by the Department of Justice and Department of Homeland Security,” Lacambra said.

When pressed by the Texas Observer about what measures, if any, were being deployed to protect Americans’ civil liberties, Texas National Guard officials declined to answer.

They also neglected to give specifics as to what the simulators are being used for. However, the contract between the Texas National Guard and Digital Receiver Technology, the producer of the dirt box, shows that planes equipped with the technology are employed in counternarcotics work. Digital Receiver Technology did not respond to a request for comment on this story.

Lacambra said she believes the devices are being used for counternarcotics, but added, “I am skeptical that they are being limited to that use. I think it is reasonable to suspect that these cell site simulators are being deployed as tools in general domestic criminal and immigration investigations along the border and throughout the state of Texas monitored by the National Guard.”  

According to the American Civil Liberties Union (ACLU), as many as 26 different states use cell site simulators at either the local or state level, and 13 federal agencies snoop with the fake towers as well. But, as is the case in Texas, the use of the dirt boxes are frequently clouded in secrecy, due to non-disclosure agreements between the devices’ producers and law enforcement agencies. Local police departments have also been vague on the rules and regulations for the use of simulators.

Texas’s airborne version of phone snooping comes just months after a group of Republicans, led by Senator John Cornyn, introduced a bill, the “Building America’s Trust Act,” that would put the area near the border under constant drone surveillance. If passed, it would require unmanned drones to scour the border 24 hours a day, five days a week. That’s in addition to a required 95,000 hours of manned surveillance flights at the border per year, and a host of other overreaching provisions in the bill, including facial recognition software and cell phone data collection at border crossings. Travelers would be required to step aside to kiosks that would scan their faces with cameras when they arrive, and again when they leave the country, to make sure they don’t overstay their visas. However, when tested, the biometric kiosks—which aren’t perfect at detecting identities—have also been used to scan the faces of Americans to confirm their citizenry. Cornyn’s bill has been introduced and placed on the Senate’s legislative calendar for a later vote.

The increased reliance on aerial surveillance, combined with the emergence of more powerful technologies such as cell site simulators, spells trouble for civil liberties, as oversight and regulations often lag far behind technological progress.

As the Cato Institute’s Matthew Feeney put it in a 2016 policy analysis, “State and federal lawmakers should take it upon themselves to provide more privacy than the Supreme Court’s aerial surveillance rulings and tackle the challenging task of allowing law enforcement to effectively use drones without threatening privacy.”    

Lacambra added that current policies regarding cell site simulators “carry no enforcement mechanisms to punish law enforcement for violating the terms of the policy.”

More checks are drastically needed for the use of cell site simulators and aerial surveillance. A non-binding order from the Department of Justice and a Fourth Amendment ruling from the D.C. Court of Appeals does nothing without more localized focuses on transparency and accountability.

Dan King is an advocate for Young Voices and a journalist residing in Arlington, Virginia. He writes about free speech, mass surveillance, civil liberties, and LGBT issues. Follow him on Twitter @Kinger_Liberty [1].

20 Comments (Open | Close)

20 Comments To "Dirt Boxes: The Newest Government Tool for Warrantless Privacy Invasion"

#1 Comment By loupbouc On December 27, 2017 @ 10:52 pm

Per Dan King: “…the Texas National Guard is not actually a law enforcement agency, but a military entity, so it’s unclear whether privacy protections apply to simulators under their control.”

The matter is NOT unclear. The 4th amendment applies to all government entities, including the armed forces.

The 4th amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Notice the language “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” That language, passive voice language, does NOT identify any government entity as the language’s object; therefore, it must apply to all government entities.

That inference is not weakened by the language “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation….” Law enforcement entities are not the only government entities that may, and may be required to, obtain judicial warrants. Numerous non-law-enforcement administrative agencies perform official searches or seizures; and when they do, they may be, mostly are, required to obtain warrants or other judicial orders authorizing the searches or seizures.

#2 Comment By Whine Merchant On December 27, 2017 @ 11:25 pm

This is one of the key issues that split the ideological Conservatives from the GOP/Tea Party/Trump crowd: Individual Rights and Freedoms vs ‘Law & Order’, ‘Peace at Any Price’, and ‘Military Might is Always Right’ fascists.

This is where freedom progressives and unobtrusive government Conservatives find common ground. The same people who want the government in your bedroom to criminalise consenting adult behaviour, policing your reproduction choices and curtailing your free speech to be offensive, also want the government to spy on your conversations and track your movements, all in the name of [false] Safety and [Christian] Values.

Thank you –

#3 Comment By GM On December 27, 2017 @ 11:26 pm

This kind of Total Surveillance state is a nightmare that would have no end. Did you also realize that when you drive down a highway that your car’s license plate is automatically read every time you pass under an overpass? That facial recognition is going to be ubiquitous in just a few years and that the snoops will know where you are anytime you step out of your house? If they know where you are and who you are with the new algorithms will be able to infer what you are discussing. Facebook and Google and others already share too much with the government without a warrant. The Stasi in East Germany could only dream about the capabilities being deployed against Americans these days. This kind of constant spying on law abiding citizens is why I don’t have a cell phone and won’t join social media sites. As for the national guard using dirt boxes, that is against the law everywhere in the USA as they are a military department and they are banned by law from doing law enforcement within the borders.

#4 Comment By EliteCommInc, On December 28, 2017 @ 12:42 am

Amazing. All of this technology to violate the Constitutional rights of citizens and we can’t stop some 20 million people from scurrying across, underneath and over our borders.

And I am supposed to believe that the military can shoot down a ballistic missile zipping at 15,000 miles per hour.

So this is confirmation that forces outside and inside of the US are undermining the very protections safeguards that citizenship valuable.

That’s nice. Note none of the advanced technology we have today would have prevented 9/11. but a simple face to face with those learning to fly planes without landing them and hanging around on expired VISAS would have.

#5 Comment By Dave On December 28, 2017 @ 7:03 am

I think it may be a bit of an overreach to consider aerial surveillance, manned or not, an overreach. Furthermore, and I may be missing something, but I don’t see any mention of collecting cell phone data or the use of cell simulator tech in this bill. The closest thing I see to an overreach is the screening of social media profiles (sec. 434), but that is preceded with, “to the greatest extent practicable, and in a risk based manner and on an individualized basis.” Certainly, “black box” tech needs to be monitored, reviewed and regulated, but that seems to be outside the scope of this bill.

#6 Comment By EliteCommInc. On December 28, 2017 @ 10:56 am

“. . . also want the government to spy on your conversations and track your movements, all in the name of [false] Safety and [Christian] Values.”

I don’t think you can link this to people of faith.
” . . . (sec. 434), but that is preceded with, “to the greatest extent practicable, and in a risk based manner and on an individualized basis.” Certainly, “black box” tech needs to be monitored, reviewed and regulated, but that seems to be outside the scope of this bill.”

In other words, we’ll avoid avoid violating the constitution at our discretion. I am a supporter of the military.

But it is with increasing frequency being employed for purposes that don’t effectively safeguard the US. The massive surveillance apparatus used to violate the foundations of our democratic republic gives me concern, not because I have something to hide, but that even innocence in the hands of the current polity is no barrier to abuse and misuse, downright manufacture of data to bolster the very over reach – our system is intended to prevent.

If the government wants to put up cameras in public spaces fine. But any intrusion into the lives of citizens demands a warrant. This is what happens when we adopt and “employ” vague standards such as probable cause to excuse warrant-less searches and seizures. I remain a huge fan of our intelligence apparatus, but in the current climate in which government uses fear to excuse to justify its actions — that is a warning sign.

#7 Comment By K squared On December 28, 2017 @ 11:29 am

Is there an identifiable individual who made the decision to employ this technology?

#8 Comment By Waz On December 28, 2017 @ 12:08 pm

The power to control citizens afforded by today’s technology is truly terrifying. That should be nipped in the bud or we’ll all soon live in a totalitarian state Stalin could only dream about.
Start with the red light cameras and demand elimination of any form of electronic data gathering. Before long it may be too late.
There’s simply no room for discussing the issue. The threat is of a total nature and the opposition to it has to be total.

#9 Comment By John Barleycorn On December 28, 2017 @ 12:47 pm

When you allow your government to spend 20 trillion dollars more than it brings in, this is what we get. The Swamp in DC needs to be defunded to the point of a business model of financial solvency, and a good portion of this over reach and abuse would stop.

#10 Comment By Fran Macadam On December 28, 2017 @ 1:24 pm

This is what Empire breeds to sustain itself. Yet there is no sign that the elites are doing anything other than to expand both Empire and that which it needs to survive and grow.

There has not been any effective resistance, for those in opposition have no power to resist, since Empire is strongest first in its means at home.

#11 Comment By GM On December 28, 2017 @ 1:51 pm

The real reason 20 million illegals came here for jobs is that corporate and agribusiness interests wanted them to. This allowed them to break the farming unions and undercut minimum wage laws. If you recall Cesar Chavez was against illegals since they undermined his attempts to unionize the grape workers. He failed once agribusiness imported massive amounts of illegals. Building trades also suffered from the influx. Nothing has happened for many years—and still won’t happen—since the same big money interests control congress.

#12 Comment By Roger On December 28, 2017 @ 2:59 pm

Good. Screw illegals, screw the cartels, and screw radical Muzzies.

“Disproportionately burden minority communities” boo hoo there’s a REASON for that, and it begins with severed heads/chopped off limbs on the border and ends with the latest Truck of Peace smashing into urban pedestrians. Anything that gives us more surveillance is a good thing.

…besides, it’s not as though Facebook and Google aren’t doing exactly this in the name of profits. Twitter recently said they’d start banning people for offline speech. Microsoft records Skype calls, Yahoo scours emails for advertising data, and y’all are worried about the government trying to stop terrorism? Horse, barn, etc except you’re focusing on the wrong barn.

#13 Comment By Dan Green On December 28, 2017 @ 3:27 pm

Now we know why Hillary preferred a server in her basement.

#14 Comment By Dan Green On December 28, 2017 @ 3:30 pm

With no defense mechanism for avoiding Muslim terrorist activities , is anyone surprised, we are already a police state. Everywhere one goes we encounter police or military with assault weapons.The digital world is but one of the police state tools.

#15 Comment By Stay Informed On December 28, 2017 @ 4:09 pm

Mr. King’s article is informative and thought provoking. There are several references to what could happen if the technology is used in illegal and unauthorized ways. Mr. King does make one statement, deep in the eighth paragraph, of how the RC-26 is used for counter-narcotics work. Mr. King also quotes Ms. Lacambra’s speculative statements on the use of the technology. Ms. Lacambra is correct in that the National Guard is under the DoD, not the policies of the DoJ or of Homeland Security.
Further research on the use of the National Guard in counter-narcotics work shows that the NG is governed by the United States Code, Title 32, Section 112. Additionally, the NG in counter-drug work is regulated by the Chief, National Guard Bureau Instruction 3100.01, as well as the National Guard Regulation 500-2. Together, the codified law of the United States and the National Guard policies and regulations (under the supervision of the Department of Defense) provide very clear rules for very limited use of military personnel and equipment.
The RC-26, and any other military equipment, may only be used in a supporting role, assisting Law Enforcement Agencies (LEAs) in counter-drug or drug interdiction activities. The military may never be in the chain of custody of evidence nor will it initiate these activities on its own.
A civil-liberties nightmare? The technology does not know one cell phone from another so it picks up all transmissions. Another question to ask – Is our government so big that it has the people and time to investigate all of the calls being made on cell phones?
Mr. King’s article is valid and makes the point that we should ensure we continue to limit the powers of our government. The NG’s use of the RC-26 in counter-drug work is limited and valuable to our society. However, unconstrained government can get to this level ( [2] Josh Chin, Wall Street Journal). Reread George Orwell’s 1984, stay well informed, but also don’t take all articles at face value. There’s always more to the story.

#16 Comment By Steve On December 28, 2017 @ 4:25 pm

“Is there an identifiable individual who made the decision to employ this technology?”
Yeah, it was the slime-ball that sat one row over from you in English class who never seemed to remember your name except right before elections for Student Senate. THEN, he was all buddy, buddy, vote-for-me. Those types didn’t all end up selling cars on their father-in-law’s used car lot.
Call them psychopaths, sociopaths or just scoundrels, those people go on to rise as high as they can and are unhindered by any morality that might curb their ambition and lust for power. In fact, a Darwinist might uphold them as the acme of the human experience. They survive and thrive in any environment.
They are the reason we hunger for a god that would either defend us from their predation in life or mete out justice after our deaths.
I have no solution nor hope to offer. All technology is a tightening noose. I’m sorry that I can not be more optimistic. We are as Rome and will end as Rome ended.

#17 Comment By EliteCommInc. On December 28, 2017 @ 4:29 pm

“. There are several references to what could happen if the technology is used in illegal and unauthorized ways. Mr. King does make one statement, deep in the eighth paragraph, of how the RC-26 is used for counter-narcotics work.”

I am first in line on border security. But the references do not indicate a limit to border activities. Hence the current problem, authorities say it is for this, but as it turns out it is never just that.

#18 Comment By JeffK On December 28, 2017 @ 5:20 pm

The surveillance state is really, really, really concerning. It has the means to suveil virtually anybody. That, coupled with a militarized civilian police force, is a prescription for totalitarianism.

Go to Youtube and search ‘copblock’ and ‘cops get owned by law knowing citizens’ and you will see dozens of videos of law enforcement personnel attempting to intimidate law abiding citizens into giving up their IDs just for walking down the street because they ‘are suspicious’. You will also see people arrested for refusing to comply with unlawful searches.

The economy is riding high right now, but if we have another financial meltdown like there was in 2008 I believe all bets will be off regarding adherence to civil law. I may be paranoid, but I do not trust Trump one bit. He is an authoritarian. At the first hint of social unrest I can see him declaring martial law and using the full power of the police state to trample constitutional rights. And I suspect he will have a willingly enthusiastic self-appointed militia that will do whatever he tells them to do.

Call me paranoid, but I believe every citizen should be well armed, have a store of food sufficient to last months, have a horde of cash, and have a cache of junk silver coins in the event of a currency collapse.

I never felt this way during the Obama years. But I sure do now.

#19 Comment By William M. On December 28, 2017 @ 5:20 pm

I’m of two minds about this: on the one hand, I have no problems as a matter of principle with mass government surveillance. I would especially prefer to have my information collected by a government for the purpose of creating a more functional society (China) rather than a corporation collecting it for profit (Facebook, Google, etc).

On the other hand, we are talking about the US government here (the Feds, in particular). Assuming that they would handle my personal as competently as they handle everything else (the most reasonable assumption one can make) I am uncomfortable with them even knowing I exist, as they might just get the idea to try to “help” me (to win my vote or something) and thereby ruin my life with their utter ineptitude (like they “helped” Iraq). Even if they don’t try to help, I find it hard to believe that my details would be more secure than the CIA’s cyber-arsenal. Which wound up on Wikileaks.

#20 Comment By b. On December 31, 2017 @ 1:24 pm

Unacceptable government overreach, which will surely and instantly produce a powerful reaction by unabridged citizens in well-regulated militias across all states! It is once again undisputed top priority for all upstanding American citizens and card-carrying libertarians to buy more guns and make a donation to the NRA – our freedoms have to be defended at all cost, against dirtbags and dirtboxes! Every now and then, the Christmas tree of liberty has to be hung with more firearms!

Stay away from those guys at the ACLU though, they are all commies.