We Could Tell You, Judge, But Then We’d Have To…

While courts have taken little issue with law enforcement lying (or, in the parlance of the judiciacy, “pretext”) to the public, they assume they’re being told the truth. After all, they’re the judges, and judges are, of course, special.  It’s not like law enforcement can’t trust them, or worse still, think so poorly of their benefactors that they would treat them the way they treat the public.

But then, there was Stingray.  For those who don’t keep up with the law enforcement technology, it’s a device that mimics a cell tower and captures phone data.  A few years back, the WSJ stumbled upon it, and it turns out that the cops were having a field day with it, but for one detail.  They had neither sought nor obtained judicial approval to use it. Heck, they didn’t even tell the courts it existed. But, oh boy, did it exist.

During an appellate argument in a sexual battery case in Tallahassee, some previously unknown details came out. From Wired via Mike Masnick Tim Cushing at Techdirt:

Police in Florida have offered a startling excuse for having used a controversial “stingray” cell phone tracking gadget 200 times without ever telling a judge: the device’s manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts.

The shocking revelation, uncovered by the American Civil Liberties Union, came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim’s cell phone. Using the stingray — which simulates a cell phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment.

During proceedings in the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.

Chutzpah, anyone? This is a stunning argument, that they can’t get warrants or even disclose to the courts that they’re using Stingray because of a non-disclosure agreement with the manufacturer.

In one way, this is reminiscent of the fight over what makes the little black box delightfully known as the Breathalyzer 5000 work, which had a secret, proprietary code that the manufacturer refused to reveal.  Which is fine, but then it can’t be used as evidence in court because its validity wasn’t subject to hearing.  You want to keep your secret? Cool. But then, find another use for your box, pal.

That there may be NDAs associated with Stingray, however, has no bearing on whether law enforcement can use the device without violating people’s constitutional rights.  It raises critical questions, however, since their use is happening anyway, just without court approval.

This should put the spotlight on manufacturers of “stingray” devices. If they’re using NDAs to keep the public uninformed and prevent the discussion of usage even in court, that’s a huge problem. If these agreements are common across manufacturers, then there can be no doubt that law enforcement agencies across the nation have falsified reports and generated alternate narratives to cover up the origins of obtained evidence.

This raises a deeply troubling question about law enforcement’s use of technology.  While the existence and use of Stingray, without so much as the pretense of seeking a warrant, is now well known, what of other technology that exists now, or will be developed in the future?

Let’s face reality: tech is growing at an astounding pace and developing capabilities that few of us can imagine, no less grasp.  It’s hardly surprising that manufacturers don’t want anyone who isn’t in the business of buying their product to know either that it exists or how it works.  For them, it’s good business. For us, it’s our constitutional rights. They don’t care about our constitutional rights, so I don’t care about their good business.

We have long known that law enforcement has no qualms about fabricating a phony source of information to conceal the true source, known as “parallel construction.”  Connect the dots. Tech marvels that no one know about. Conceal the true sources of information and present a manufactured story to the court and defense. No warrants, ever. Bingo.

For law enforcement, the core argument is twofold, that it works and that if they go through the courts, then everyone will know about it and it won’t work as effectively.  Plus, courts are a hassle, and it’s law enforcement that keeps us safe at night from the rapists and terrorists, not pointy-headed judges who think they have a clue and pull out the big old rubber stamp anyway.

How does that sit with you, Judge?  Bet you didn’t realize that you were little more than a cog in the law enforcement wheel, to be ignored and avoided whenever possible because you just get in the way of their saving us from the killers?

The problem, at least for the rest of us, is that this reduces everything we do to a total sham.  we argue about phony scenarios invented to conceal the cool toys that are being used to seize evidence from unwitting defendants, right under the nose of clueless judges.

And ironically, it’s those same judges, who are being treated like mushrooms, who refuse to order the prosecution to disclose the information we need to defend.  Maybe this doesn’t matter, as we would never get the truth no matter what a judge ordered, but we don’t even get a fighting chance if we can’t get a judge to enforce nifty rules like Brady.

Whether this is a Stingray problem, a tech problem, a systemic problem or more can’t be known for sure. That’s the nature of running a legal system where one leg of the stool isn’t held to account, lies with impunity and ignores such “technicalities” as the Constitution.

But to try to cover it by a manufacturer’s nondisclosure agreement has to be the lamest, most cynical rationalization ever. When the Florida judges heard this, they were not pleased, calling out the state for the fact that they had no intention of getting a warrant regardless. But no head rolled, of course, and aside from a possible bruised feeling, there is nothing to stop the cops from enjoying Stingray, or Fruitfly, or whatever the next tech marvel might be called, for as long as they can keep it under wraps.  While we may lose some sleep worrying about such things, they won’t.

8 comments on “We Could Tell You, Judge, But Then We’d Have To…

  1. Pingback: Freedom on the Internet, Only Safer For The Children | Simple Justice

  2. Fubar

    But no head rolled, of course, and aside from a possible bruised feeling, there is nothing to stop the cops from enjoying Stingray, or Fruitfly, or whatever the next tech marvel might be called,

    There might be something to stop them at least temporarily, but it’s not in Florida.

    Intercepting and retransmitting cell phone signals is inherently distinct from tapping actual wires or glass fiber in a very specific way: it requires radio frequency signal transmission across public space.

    Cell tower transmitters are licensed by the FCC. It’s possible, even very probable (subject to further fact checking) that the FCC requires these cell tower imitation devices to be licensed as well, and they are not. The State of Florida doesn’t get to issue licenses for radio transmitters. The FCC preempts the field. A properly framed complaint to the appropriate bureau at the commission might get some action.

    Or maybe I’m just irrationally optimistic today.

    1. SHG Post author

      You have no appreciation of the importance of law enforcement, and how it can’t be stopped by such pedestrian regulators as the FCC. Didn’t you ever watch 24?

      1. Fubar

        Gawd’s honest truth, I never watched “24″. But I have seen local governments jackslapped by communications lawyers when they try to regulate radio transmission facilities that federal law permits only the FCC to regulate.

        I vaguely recall recently some wayward city government that wanted to use a radio transmitter to shut down peasants’ cell phones in city council chambers during meetings. They soon learned that they can’t do that without a license from the FCC, which has never granted a license for that purpose.

        In these fake cell tower cases there is no question that FCC regulations preempt any state or local government statute regarding transmission of radio frequency signals. It’s been that way since the Communications Act of 1934. The only questions are whether the local government entities (ie: the police) have been properly licensed either specifically or by some more broad FCC ruling, to make those transmissions.

        I don’t know the answers to those questions, but I expect that some communications lawyers could find out readily.

  3. John Barleycorn

    Your pessimist outlook of what unknowns are already in existence and what is to come is modest. Perhaps your most conservative estimation this year.

  4. Jim Tyre

    Scott,

    Your link to Wired is a link to a piece on Monday by Kim Zetter on Wired’s Threat Level blog.

    Kim has another piece yesterday on that same blog, which talks about Harris and the NDA it uses in Arizona, which is believed to be the same as in Florida. It quotes some of the NDA, provides some interesting details. The info there was obtained using the state equivalent of FOIA. There is similar FOIA action in other states as well, some by ACLU, some by others.

  5. Danimaux

    It’s a contract. Law enforcement could have resisted the NDA or requested an exception for disclosure to the courts. I am shocked, SHOCKED that they did not vigorously negotiate the point. SHOCKED.

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