New Documents Show FBI Instructing Law Enforcement To Throw Out Cases Rather Than Give Up Info On Stingray Use

from the in-order-to-ensure-the-public's-safety,-we-must-compromise-the-public's dept

Documents obtained by the New York ACLU (via a lawsuit, naturally) provide more details on the FBI’s efforts to cover up usage of Stingray devices. Back in February, an FBI memo obtained by the Minnesota Star Tribune stated clearly that the agency required all public records requests for Stingray documents be routed through it.

This agreement between the FBI and the Erie County (NY) Sheriff’s Department is even more restrictive. It opens up with the FBI repeating one of its lies in hopes of making the highly-restrictive agreement following it seem less like federal bullying and more like just one of those unfortunate byproducts of pesky regulation.

Consistent with the conditions on the equipment authorization granted to Harris Corporation by the Federal Communications Commission (FCC), state and local law enforcement agencies must coordinate with the FBI to complete this non-disclosure agreement prior to the acquisition and use of the equipment/technology authorized by the FCC authorization.

This paragraph is apparently included in every FBI/Stingray agreement and, according to the FCC, it’s all a bunch of BS. The FCC may require coordination with the FBI prior to the purchase of Stingray equipment, but it does NOT require the signing of a non-disclosure agreement. Here’s its reply to an FOIA requester seeking the text of this supposed FCC requirement.

We do not require that state and local law enforcement agencies have to complete one or more non-disclosure agreements with the Federal Bureau of Investigation prior to acquisition and/or use of the authorized equipment. We have no documents responsive to your request.

So, the FBI opens with a lie, and then moves on to instructing law enforcement agencies to lie about their Stingray usage… to damn near everybody.

In order to ensure that such collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions, operation, and use shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including but not limited to: in press releases, in court, during judicial hearings, or during other public forums or proceedings.

The government wants law enforcement agencies to lie to the courts — which includes lying to judges, prosecutors and defendants. Everyone is included. This is made even more explicit a few paragraphs later.

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… 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 short: parallel construction. The Sheriff’s Office can hand over the results of Stingray collections, but not divulge how it arrived at these results. If it’s going to deploy a Stingray, it either needs to do it without a warrant, or mislead the judge on its search techniques when applying for one.

When not lying to judges, the Sheriff’s Office will need to lie to defendants and their counsel. Most incredibly, the FBI instructs the law enforcement agency to directly disobey court orders, if it would mean turning over Stingray information.

If any of this seems unavoidable, our nation’s top law enforcement agency encourages its colleagues to toss out criminal prosecutions rather than risk exposing Harris Technology’s equipment.

In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using, or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology […] if using or providing such information would potentially or actually compromise the equipment/technology.

With one caveat…

This point supposes that the agency has some control or influence over the prosecutorial process.

But what a caveat. This is the FBI stating that it assumes any law enforcement agency it enters into this agreement with can easily push prosecutors to drop cases. It naturally follows that this sort of influence would also allow law enforcement agencies to push questionable prosecutions forward, if so inclined.

If the law enforcement agency doesn’t have that kind of pull, the FBI suggests they make rogue prosecutors sign on the dotted line as well.

Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.

And the lies being told by the Erie County Sheriff’s Department have already been numerous. As the NYCLU points out, a court order for the deployment of the devices was obtained only once in the 47 incident reports returned as responsive documents — which isn’t what Sheriff Howard said when (mostly not) answering questions about his office’s Stingray use last May:

Howard said the machines are used under “judicial review” in all criminal matters.

Well, obviously not. And for that matter, the Sheriff’s Office isn’t performing much oversight on its own. The NYCLU requested several more Stingray-related documents, including department policies, warrant applications, agreements with communications providers and records concerning the technology’s use in investigations. None of these requested documents were withheld. They simply did not exist. The NYCLU sees this as extremely odd:

This leaves us puzzled. Either the $200,000 device is just sitting around somewhere without being used or the agency is using the device without creating and maintaining records.

The latter is more probable, especially in light of the FBI’s restrictive non-disclosure agreement. There’s no better way to avoid violating that agreement than simply not creating any records that might somehow find their way to the many venues the FBI has listed as off-limits.

What it all boils down to is this: the FBI believes it is more important to protect law enforcement technology than protect the public. It says toss out prosecutions if it might compromise Stingray specifics and actively withhold information from every other participant in the justice system — from defendants seeking information in discovery all the way up to every judge, at every level, presiding over these cases. The first potentially puts dangerous criminals right back out on the street. The latter guts the protections built into the system. Neither of these are done in the public’s interest, and as far as these documents go, the public is way, way down on the FBI’s list of priorities. The same goes for law enforcement agencies that willingly sign these agreements.

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Comments on “New Documents Show FBI Instructing Law Enforcement To Throw Out Cases Rather Than Give Up Info On Stingray Use”

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Roger Strong (profile) says:

Re: What are they saying?

With Stingray use now common knowledge, they’re trying to protect the remaining details.

Ted Striker: My orders came through. My squadron ships out tomorrow. We’re bombing the storage depots at Daiquiri at 1800 hours. We’re coming in from the north, below their radar.
Elaine Dickinson: When will you be back?
Ted Striker: I can’t tell you that. It’s classified.
– Airplane!

Anonymous Coward says:

Has the US Gov really sunk so low?

I cannot even begin to express my dissapointment that the US government has sunk to such a low. The total disregard for the constitution, the lies, the denials, the coverups and the misdirection. It is really hard to tell the FBI, NSA, DHS, congress, senate and whitehouse from the criminals.

That One Guy (profile) says:

Re: Re:

You’d like to think so, but far too many(though one would be ‘too many’) judges buy their ‘We can’t tell you because National Security: Because Terrorists!‘ rot, and just let them get away with whatever they want to do.

If that includes presenting evidence and not letting the defense know where and how it was collected, well, that’s the price to pay for security right, abolishing the rights of the public?

John Fenderson (profile) says:

Re: Re:

In terms of being a surveillance state, the old East Germany has nothing on the present day US. On the whole, we are the most surveilled population in history.

Certainly things were much more unpleasant in other places and times, but that has nothing to do with anything — unless you’re asserting that things are just fine as long as they aren’t as bad as they could possibly be. I hope not, because that is a recipe for the acceptance of tyranny right there.

John Fenderson (profile) says:

Re: Re: Re:

Technically, a “police state” is form of totalitarian government where social, political, and economic control is extreme, usually enforced through the police or military. Police states commonly use “secret police” as their main instrument of political control.

Ironically, “police state” originally meant a government that was controlled by civil authorities (as opposed to military), and was not a derogatory thing at all. Under that definition, all modern democracies are in fact police states. The definition changed to its current meaning in the early 20th century.

justme says:

Down the rabbit hole. .

The effort to prevent any information about stingray’s out of the court’s, much like the effort to prevent any legal challenge to the N.S.A.’s collection program, Isn’t about protecting the public from criminals or terrorist’s.

It’s about preventing any legal examination of tactic’s which almost certainly would be ruled illegal/unconstitutional. But as long as they can prevent such a ruling, they can continue to claim legality, based solely on the opinion of there own in house counsel.

If they took an oath to ‘protect and defend the constitution’, the have failed completely!

PlagueSD says:

“If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”
– Joseph Goebels

If you don’t know who Joseph Goebels is, he was Hitler’s Minister of Propaganda.

David says:

Re: Re:

District attorney Henry Martyn, may I call you Henry? Well, it would appear from your communications with Judge Miller that you are preparing or rather contemplating bringing suit against some of our finest FBI men.

We all know how important successful suits turn out in the career of a district attorney, so this does not seem like a smart move. I doubt your mistress would approve.

I know of some attorneys entertaining similar ideas just to find out on the eve of the trial that they did not, in fact, have all the evidence they thought they did. And it turned out that there was irrefutable proof that the evidence they had was forged, and there were glaring inconsistencies in the evidence they handed in that had escaped their previous notice. What a setback. We certainly would not wish anything like that on anybody.

By the way, don’t you think that you drive to Heidelberg too frequently?

MikeC (profile) says:

The real problem is the courts

The real problem in the majority of these cases is not the police. It’s the court system – our government of checks and balances has failed. The court system does not check the government or it’s enforcement function, the police.

This case is one of the few where the courts have stood up and done their job. From the supreme court on down we have been failed by the system designed to protect us from this kind of tyranny. I honestly haven’t the slight idea how to fix this within the confines of the system since the system itself has failed.

That One Guy (profile) says:

Re: More than enough blame to go around

It’s both. The police and government agencies for lying to the courts, and the courts for not dismissing or overturning the cases as a result of the lies. The government and police for presenting evidence from ‘confidential’ and ‘classified’ sources, and the courts for not throwing that evidence out.

Both sides are quite guilty, it’s not just one or the other.

Uriel-238 (profile) says:

Because ambiguously legal toys are so much fun.

You know, law enforcement doesn’t like to admit that they have sap gloves either.

I have a pair because they’re not illegal because to make them illegal would be to inform the public that such things exist.

They’re leather gloves with pockets of iron shot atop the fingers from the first-to-the-second knuckles. They’re very big with the police.

Brass knuckles are still illegal. Even police officers are not allowed to use them. But sap gloves are.

Think about that the next time you see a cop pugilizing an old woman.

Anonymous Coward says:

It appears the FBI has gone rogue just like the CIA by carrying out ‘the ends justify the ways and means’ mission. Torture is one of the rogue missions in the CIA’s case. Subverting Constitutional law, FOIA Act law, due process, and all around subversion of America’s judicial system in the FBI’s case of Stingray use while burning down the paper trail.

Uriel-238 (profile) says:

This might present a means of actively defending against "classified" sources

If our defense lawyers get into the practice of challenging any evidence from classified / national-security-protected sources to be a stingray device, this may ultimately serve as a counter against evidence from opaque sources.

It’d work if the judges and juries weren’t completely eager to slap a guilty plea whenever a police officer told a colorful enough yarn in his testimony.

Uriel-238 (profile) says:

Re: So it's been throughout most of history.

Feudal Europe was run by warlords who policed with zero oversight and sustained their power with brute force, as necessary.

It worked out poorly for their vassals a lot of the time when they failed to recognize the value of the rabble.

That’s why we got into this newfangled idea of government by collaboration, or requiring even administrators to follow the law.

Seems like our first version has some bugs in it.

tqk (profile) says:

Re: Re:

I don’t think it will be too long before a reliable means of detecting these will be created and released.

When/if the word gets out, you’ll start to hear large crowds of people around you shout “2G!” when they’re being used near you. Which is what they do. They force all phones in their vicinity to fall back to 2G which is hackable by anyone who can, including the fibbies.

Anonymous Coward says:

Re: Re: Re:

What I see needing to happen is a mapping of the coordinates and unique identifiers of all existing cell towers that can then be published as a sort of white list. Then software that acts as a firewall of sorts that automatically drops all requests to connect from any unverified source not on the list and not located where it is supposed to be effectively making a personal device completely invisible to these sorts of devices.

nasch (profile) says:

Re: Re: Re: Re:

Then software that acts as a firewall of sorts that automatically drops all requests to connect from any unverified source not on the list and not located where it is supposed to be

I don’t think the phone can tell where the tower is. Maybe over time as it moved around it could guess based on signal strength, but that would be pretty unreliable and by that time the Stingray has been snooping on you for a while anyway.

Anonymous Coward says:

Re: Re: Re:4 Re:

I only mentioned the location as a means of approaching the problem from a means of authenticating the towers you actually use and excluding all others instead of trying to detect fake ones. If you can make sure you are only connecting to real ones and that your device ignores all other requests then you don’t have to worry about detecting the fake ones.

Uriel-238 (profile) says:

Re: Re: That'd be a nice feature then.

An app or OS feature that detects a switch to 2G and kills data throughput for a few minutes. My 2G service is frustratingly slow anyway.

Of course, I suspect that’s only a temporary solution, as they’re probably building better phone spoofing technology as we speak.

Still, I’d buy that for a dollar.

Anonymous Coward says:

Re: I'd still like to add that a sabotage campaign against spoofing towers...

I would love to watch that case play out when that happened. Local PD spend thousands of dollars on a cell tower spoofer only to have it detected and malware uploaded by the suspect that fries the firmware. They charge him with destruction of police property but in doing so have to admit that they were using the device without a warrant in the first place.

GEMont (profile) says:

The Adversary R U

“…and as far as these documents go, the public is way, way down on the FBI’s list of priorities.”

Oh I don’t know about that.

Looks to me like the public is number one on their list of priorities actually.

After all, its the public that is being spied on by these devices, and its the public that the Feds are doing their criminal best to keep out of the loop concerning the potential and popular uses of these devices.

Nope. I’d say that John Q. Public is absolutely the first one on the priorities list – of suspects and criminals soon to be prosecuted, who must at all costs be kept ignorant of the tools being used against them.

Looks more and more apparent every day, that the Public really is being seriously considered as the enemy – the Adversary – by all branches of the Federal US Government.

When you declare war on Terrorists, you have no choice but to include your own public, as terrorists are nothing more than angry civilians – the public – and the Federal Government intends to make almost all US citizens without 6 to 8 figure incomes, very, very miserable in the very near future. 🙂

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