FBI Says It Has No Idea Why Law Enforcement Agencies Are Following The Terms Of Its Stingray Non-Disclosure Agreements
from the geez,-all-these-law-enforcers-take-our-agreement-so-LITERALLY dept
The FBI doesn’t want to talk about its Stingray devices. It definitely doesn’t want local law enforcement agencies talking about them. It forces any agency seeking to acquire one to sign a very restrictive non-disclosure agreement that stipulates — among other things — that as little information as possible on IMSI catchers makes its way into the public domain, which includes opposing counsel, prosecutors’ offices and judges. The NDAs also instruct agencies to drop prosecutions if disclosure appears unavoidable. We know this because two NDAs have actually been obtained through Freedom of Information requests.
Now that Stingray usage and its attendant secrecy have been questioned by high-ranking DC legislators, the FBI is apparently feeling it should be a bit more proactive on the Stingray info front, presumably in hopes of heading off a more intrusive official inquiry. So, it has offered some “clarification” on its Stingray policies — including the NDAs it makes local agencies sign.
In a handful of criminal cases around the country, local police officers have testified in recent months that non-disclosure agreements with the FBI forbid them from acknowledging the use of secret cellphone-tracking devices. In some, prosecutors have settled cases rather than risk revealing, during court proceedings, sensitive details about the use of the devices.
The FBI, however, says such agreements do not prevent police from disclosing that they used such equipment, often called a StingRay. And only as a “last resort” would the FBI require state and local law enforcement agencies to drop criminal cases rather than sharing details of the devices’ use and “compromising the future use of the technique.”
To date, the bureau hasn’t invoked that provision, FBI spokesman Christopher Allen said in a statement to The Washington Post.
Let’s compare the official statement with statements found in the agreement signed with a New York sheriff’s department. The FBI says it’s OK for law enforcement agencies to disclose Stingray usage in this “clarification.” Here’s the NDA:
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.
The FBI also denies it instructs agencies to toss cases rather than face possible exposure of Stingray usage. The NDA:
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.
This “clarification” is mostly bullshit, but it’s all in the wordcraft. Everything the FBI stated here could be technically factual. It may have never explicitly directed agencies to dump cases or hide Stingray usage. Instead, it has relied on law enforcement agencies to follow the restrictions laid out in the NDAs — something they’ve apparently done without ever bothering to approach the FBI for permission to turn over Stingray information during court cases.
To say these NDAs do not prevent law enforcement agencies from acknowledging the use of Stingray devices is only true insofar as the NDAs themselves are apparently just a pile on unenforceable words. The implication, however, is that these agencies will see their Stingray privileges yanked if they cough up information. Or, in the best case scenario, law enforcement officials will be sternly talked to by FBI officials for breaching the agreement.
As for the claim that the FBI has never directly instructed a law enforcement agency to toss a case rather than disclose information? That may be true, as well as being completely unverifiable. Agencies appear to be taking these agreements literally — which is, of course, the point of ANY WRITTEN AGREEMENT — and proactively dropping cases rather than risk breaching the terms of the NDA.
The FBI is washing its hands of the Stingray secrecy mess it created. This “clarification” is astoundingly disingenuous. The FBI forces agencies into these agreements and then steps back and says, “Hey. we didn’t make them do this. They just interpreted the agreement to mean exactly what it says it means.” It passes the buck to local cop shops, blaming them for not seeking the second opinions these agreements clearly discourage.
If this “clarification” is actually going to approach something akin to honesty, the FBI needs to immediately begin rescinding its non-disclosure agreements. It can’t force agencies into restrictive agreements and then throw up its hands and claim it has no idea why these agencies might be interpreting these highly-restrictive NDAs so literally. This is a nasty, self-serving cheap shot wrapped in the guise of transparency.