Stingray Memo From FBI To Oklahoma Law Enforcement Tells PD To Engage In Parallel Construction

from the fake-it-til-you-make-it dept

The concept of “checks and balances” kind of takes a beating when one branch of the government says it’s ok to lie to another branch. We’ve already seen the FBI tell law enforcement agencies — through extensive NDAs it makes them sign before they can deploy cell site simulators — that it’s better to let suspected criminals walk away from charges than risk allowing details on Stingray devices to make their way into the public domain via submitted evidence.

Many law enforcement agencies appear to be doing exactly that. More than one agency has misled judges with applications for pen register orders and requests for cell site location data — neither of which provide details on the technology actually being used.

Another memo from the FBI shows the federal agency directly instructing a local law enforcement agency to engage in parallel construction. The memo, obtained by Oklahoma Watch, explicitly spells out what is supposed to happen if cell site simulator use is part of the evidence chain. (h/t Nate Wessler)

Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials. This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment.

The problem is that this sort of “lead” often leads directly to search warrants of residences where people are located. The Oklahoma City PD is being told to obtain other non-Stingray-related data that could plausibly explain how it managed to located Subject X at Location Y. Officers won’t be telling magistrate judges when seeking pen register orders or subpoenas for cell location info. And officers won’t be telling defendants or their representation how they managed to be in the right place at the right time with a search warrant.

The memo also notes that the FBI “will use all appropriate legal means” to prevent Stingray use from being uncovered in discovery requests. Apparently, “all appropriate legal means” covers parallel construction.

What sets this apart from the FBI NDAs we’ve covered here previously is that this memo is limited to the local law enforcement’s borrowing of FBI equipment to locate suspects. With the FBI still in control of the device, it’s obviously going to be that much more concerned with controlling the narrative.

Clifton Adcock of Oklahoma Watch notes that local law enforcement appears to be using Stingray devices but covering it up through pen register orders. In one case, this has led to a very suspect request from the Oklahoma City PD, suggesting it had borrowed an FBI cell site simulator to locate the defendant.

In one of those cases, a defense attorney, Douglas Parr of Oklahoma City, said he believes a cell site simulator was used to collect his client’s phone data. The client is charged with drug trafficking. During a hearing in Oklahoma County District Court in September 2015, Parr asked an Oklahoma City police detective whether a simulator had been used. The detective, who had requested the order, testified that to his knowledge such a cell site simulator had not been used.

Testimony in the case shows the officer did not file for a trap and trace order with the court until the day he testified in September – more than a year after he conducted the surveillance.

According to the FBI’s new rules for Stingray use, warrants must be sought and provide explicit details about the technology being used — including the facts that Stingrays search every phone in the area while trying to locate devices and that local service may be disrupted during deployments. The DOJ’s ruleset arrived a few months after this particular Memorandum of Understanding was signed with the Oklahoma City PD. One would hope a revised version is on the way, if not already in the hands of Oklahoma law enforcement — one that does a better job of reflecting the DOJ’s current stance on warrants and information dissemination.

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Comments on “Stingray Memo From FBI To Oklahoma Law Enforcement Tells PD To Engage In Parallel Construction”

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That One Guy (profile) says:

Re: Re:

Yeah, call it what it is, enough of the polite ‘parallel construction’.

It’s taking tainted evidence that isn’t legal and coming up with a ‘legal’ source so it can be used. That same activity used financially is considered and referred to as ‘money laundering’, so ‘evidence laundering’ not ‘parallel construction’ is the correct term.

Anonymous Coward says:

Re: Re: Re: [Call It What It Is]

Is subornation of perjury illegal now? I always got the impression it was more of a ‘frowned upon if you get caught’ rule of etiquette.

At minimum, it seems legit under qualified immunity, absolute immunity, good faith exception, secret law, national security, law-is-as-law-does precedent.

Quiet Lurcker says:

…[I]ndependent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information …

Then by implication, stingray information would be inadmissible in that same court.

And we wonder the feds and cops both don’t want to admit to using singray equipment.

That One Guy (profile) says:

Re: Re: Re:

Even with a warrant, stingray data should be inadmissible — general warrants are illegal in the United States.

Change to reflect how eager some judges are to bend over backwards in the name of giving the police and government anything they want.

Stingray data should be seen and treated as completely incompatible with a warrant requirement, and therefore illegal to gather or use, for exactly the reason you list, but sadly sanity does not always rule in the courts, especially when the ‘National Security’ or ‘Because bad people’ excuses are trotted out.

Anonymous Coward says:

Re: Re:

The process of parallel construction probably has legitimate roots in protecting people such as undercover personnel, witnesses, or other suppliers of information.

It’s a shame that illegitimate uses are so easy to get away with, but the police aren’t really held accountable.

David says:

Re: Re: Re:

The process of parallel construction probably has legitimate roots in protecting people such as undercover personnel, witnesses, or other suppliers of information.

Uh no? Due process requires the defendant and the court to know about the source of evidence and the motivation for searches. If you just swallow “I just happened to be around for reasons” every time, you get a surveillance state running wild. Undisclosed sources are a very serious problem for due process that needs to be weighed very seriously and be open to very critical looks by defense and court.

“Parallel construction” ducks the necessary extra consideration by the court for undertakings that are very sensitive for proper finding of justice. It can never be legitimate.

Either you find justice in court, or you can save yourself the trouble altogether.

Anonymous Coward says:

Re: Re: Re:

And in a funny little case of parallel corruption, the Grand Jury has legitimate roots in protecting average citizens from malicious prosecution by the state. And now, of course, ‘the police aren’t really held accountable’ by using the GJ as a ‘No Bill the LEO’ device.

Legal systems just love to put on gold sashes and grow goatees the second they hit puberty.

Justme says:

Gate Keeper. .

The core problem with using these devices is unlike getting say a traditional wiretap, The entire process is in the hand’s of law enforcement, where with traditional wiretap/pen trace it was a third party that actually performed the wiretap and kept it within limited scope of the warrant.

Having been given the keys to the kingdom, i can assure you that they are doing a hell of a lot more the just tracking phones.

And parallel construction is allowing the justice department to incarcerate people based on a completely fictional narrative and enabling law enforcement to hide the use of methods that would likely be deemed to be illegal in any court.

Anonymous Coward says:

"...parallel construction...would likely be deemed to be illegal in any court."

The significance of that pales in comparison to:

1) perjury – police are knowingly, intentionally lying in court at the behest of the FBI;

2) the FBI, law enforcement arm of the Executive Branch of the Federal Government, and its more local lackey LEOs are undermining the checks and balances of their respective Constitutionals by evading honest judicial review of Executive actions.

…treason much?

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