Last week, the DoJ filed a memorandum in which it conceded that its tracking methods did indeed constitute "a Fourth Amendment search and seizure," ostensibly marking a 180-degree shift from its previous stance. But the government isn't willing to issue a full mea culpa. According to prosecutors, use of the stingray was authorized under a court order that investigators used to procure real-time tracking information from Verizon Wireless, Rigmaiden's service provider. Because of this, the Department argues, investigators did not have to obtain a second warrant to justify setting up a dummy cell tower. The defense, meanwhile, has countered with an argument that the aforementioned court order wasn't a valid warrant, because it allowed the feds to delete all collected data, in lieu of submitting them to the court. An FBI representative had previously told the Wall Street Journal that this policy "is intended to protect law enforcement capabilities so that subjects of law enforcement investigations do not learn how to evade or defeat lawfully authorized investigative activity." The prosecution elaborated upon that sentiment in its most recent memo, claiming that collected tracking information is deleted in order to guarantee "that the privacy rights of those innocent third parties are maintained."
So why would the government suddenly change its position on the stingray? According to court documents, it's willing to make these concessions in order to "avoid unnecessary disclosure" of further details on how the device works. In admitting that the use of stingrays constitutes a search and seizure as defined by the Fourth Amendment, the government is apparently looking to sidestep thornier litigation that could jeopardize the secrecy of its tactics. The DoJ was careful to note, however, that its most recent admission does not alter its fundamental philosophy that Rigmaiden did not "have a reasonable expectation of privacy in his general location or in the cell site records he transmitted wirelessly to Verizon." The defense did not respond to the Journal's request for comment, though it did state its intent to file a response this week.
*Verizon has acquired AOL, Engadget's parent company. However, Engadget maintains full editorial control, and Verizon will have to pry it from our cold, dead hands.