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Rudy Takala's Columns

Chaffetz seeks to criminalize warrantless data collection


Legislation being introduced on Monday would make it illegal for agencies to use fake cell towers that vacuum up cell phone data over a wide area without a warrant.

House Oversight Committee Chairman Rep. Jason Chaffetz, R-Utah, is introducing the Cell-Site Simulator Act. Under draft text of the bill provided to the Washington Examiner, collecting metadata with a device known as a stingray would require a warrant. Violations would be punishable by a fine and up to 10 years in prison. The bill would exempt emergencies that include an "immediate danger of death," national security or that fall under the Foreign Intelligence Surveillance Act.

Lawmakers have tossed around ideas for such a law, but Monday's proposal is the first one filed. It follows an admission last week from Internal Revenue Service Commissioner John Koskinen that his agency uses cell-site simulators, which harvest telephone data by mimicking cell phone towers in some investigations.

"What it does is primarily allow you to see point-to-point where communications are taking place. It does not allow you to overhear — the technique doesn't — voice communications," Koskinen said.

However, some of the devices do allow for the collection of voice communication, even if the "technique" referenced by Koskinen precludes it. Additionally, critics note, the devices do not work in a targeted manner. In order to collect data from one target, the devices must collect data from all of the cell phones in the area, even from those who are not suspects in an investigation.

The Justice Department implemented a self-imposed policy in September requiring its agents to seek warrants in circumstances similar to those proposed under Chaffetz' legislation. The Department of Homeland Security followed suit in October. That means the only entities yet to announce their policies are the Defense Department, the Central Intelligence Agency and the Treasury Department.

After last week's revelation that the IRS was using the devices, lawmakers fired off a round of letters demanding details. Senate Judiciary Chairman Chuck Grassley, R-Iowa, and Ranking Member Patrick Leahy, D-Vt., asked about the agency's policies involving the surveillance. Chaffetz and his counterpart on the House Oversight Committee, Ranking Member Elijah Cummings, D-Md., demanded similar information, as well as details on whether it had ever been misused.

However, answers may not come fast enough for lawmakers who are already skeptical of the IRS. Under a separate resolution proposed by Chaffetz, many House Republicans are already seeking to impeach Koskinen for over accusations that he misled Congress about his agency's role in targeting conservative groups.

In addition to federal agencies, Chaffetz' bill would also apply to state and local agencies across the country. The American Civil Liberties Union has identified 57 agencies that own cell-site simulators in 22 states and the District of Columbia.

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