One of them is the FBI, which has been happy to let the NSA take all the heat
over its metadata collection program while helping local police departments
deploy so-called “stingrays.”
While the NSA program logs call data like time and numbers dialed (along with
some basic location information), the stingrays can do much more in terms of
pinpointing the location of a call and are even capable of intercepting calls
and text messages. They work by simulating a cell phone tower, effectively
tricking phones in the area to pass their content through the stingray and into
cops’ hands.
All of this is happening behind a veil of secrecy. Local police departments that
wanted to get their hands on some of the FBI’s stingray tech had to sign a
non-disclosure agreement promising to never talk about the stingrays in a court
of law. The NDA also includes a provision that local police would have to drop
any case, at the FBI’s request, if there was a risk that prosecuting the case
would lead to revealing the stingray technology.
It’s secret policing at it’s very finest.
LISTENING IN: The FBI has given stingray technology to local police departments
in a number of states, but the secrecy of the program means no one is sure
exactly how many departments are using them.
We know these details about the stingray nondisclosure agreements because the
American Civil Liberties Union won a lawsuit last month against the Erie County
Sheriffs Department in western New York and forced the department to reveal its
agreement with the FBI.
Now that the information is out there in the public, the FBI is trying to
reassure everyone it wasn’t secretly spying on your phone calls, and certainly
wasn’t telling local cops to keep the program secret.
“The NDA should not be construed to prevent a law enforcement officer from
disclosing to the court or a prosecutor the fact that this technology was used
in a particular case,” FBI spokesman Chris Allen wrote in an email to tech
journalism site Ars Technica.
That’s a funny way to view a nondisclosure agreement, right? As not intended “to
prevent…from disclosing” something?
It’s even more odd when you read through the NDA the ALCU got from the Erie
County Sheriff’s Department, which includes this section:
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The Erie County Sheriff’s Office shall not, in any civil or
criminal proceeding, use or provide any information concerning the
Harris Corporation wireless collection equipment/technology, its
associated software, operating manuals, and any related
documentation (including its technical/engineering description(s)
and capabilities) beyond the evidentiary results obtained through
the use of the equipment/technology including, but not limited to,
during pre-trial matters, in search warrants, and related
affidavits, in discovery, in response to court ordered disclosure,
in other affidavits, in grand jury hearings, in the State’s
case-in-chief, rebuttal, or on appeal, or in testimony in any phase
of civil or criminal trial, without the prior written approval of
the FBI.
In other words, the sheriff’s department was prohibited from
discussing any aspect of the stingray program — except the
“evidentiary results,” meaning the data collected from cell phones —
without expressed written consent of the FBI.
But now the FBI says that doesn’t mean exactly what it says and
local police have always been allowed to talk about the stingrays in
court.
“Defendants have a legal right to challenge the use of electronic
surveillance devices, and not disclosing their use could
inappropriately and adversely affect a defendant’s right to
challenge the use of the equipment,” Allen told Ars Technica.
He’s right about that. It’s pretty hard for a defendant to challenge
the existence of a secret program that no one is allowed to discuss
in court — and that’s exactly the problem with stingrays, the FBI’s
nondisclosure agreements and the way local cops could be using the
technology to broadly track Americans.
As the Washington Post notes, law enforcement has claimed they only
use the devices to track known “persons of interest,” but data
released by those same agencies has often shown that stingrays are
being used in routine investigations like drug busts.
The whole matter has caught the attention of the U.S. Department of
Justice, which recently announced it would review the FBI’s use of
the stingray technology.
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