Harris Stingray Nondisclosure Agreement Forbids Cops From Telling Legislators About Surveillance Tech

from the lying-about-the-law-to-ensure-silence dept

The FBI set the first (and second!) rules of Stingray Club: DO NOT TALK ABOUT STINGRAY CLUB. Law enforcement agencies seeking to acquire cell tower spoofing tech were forced to sign a nondisclosure agreement forbidding them from disclosing details on the devices to defendants, judges, the general public… sometimes even prosecutors.

A new wave of parallel construction washed over the land, distancing defendants from the source of evidence used against them. Pen register orders — used to cover the tracks of Stingray searches — started appearing en masse, as though it was 1979 all over again. If curious lawyers and/or judges started sniffing around, agencies were instructed to let accused criminals roam free rather than expose details about Stingray devices. According to the FBI, public safety would be irreparably damaged if Stingray details were exposed. Apparently the return of dangerous criminals to the street poses no harm to the public.

Another NDA has been uncovered, thanks to a lengthy public records lawsuit. The document finally handed over by Delaware State Police to the ACLU was once referred to as “mythical” by the DSP in court. Yes, the State Police once claimed this NDA never existed. It did so while claiming it had zero communications with Harris while acquiring its Stingray. The ACLU obviously found this hard to believe and the court sent the DSP back to search harder. The Harris NDA is real. And it’s spectacular.

The agreement, signed by a state police detective in 2010, stated that officers could not “discuss, publish, release or disclose any information pertaining to the (cell phone tracking) products” to the general public, to companies, to other governmental agencies, or even to other officers who do not have a “need to know.”

A letter attached to the agreement, and signed by Harris Corp.’s account manager, said police are not permitted to talk about the devices with “elected officials.”

“Stealth, quiet approach and skilled execution are the glue that transforms weapons and technology investments into capabilities and results,” Harris Corp.’s Michael E. Dillon said in the letter. “Only officers with arrest authority are permitted to use them (Stingrays) or have knowledge of how they work.”

Harris cited federal law for the conditions in the agreement, which it stated is similar to other “intelligence oriented aspects of your operations.”

Yes, Harris is deliberately misconstruing federal law to ban law enforcement agencies from discussing its devices with anyone, including those who oversee departments and their spending. This means the public has zero chance of knowing what surveillance tech local officers are deploying. The part of the law cited by Harris — 18 USC 2512 — simply forbids entities who are not (a) wireless service providers or (b) government contractors from advertising or selling tools that intercept wireless communications. It has absolutely nothing to say about discussing these devices with other government entities (or the general public for that matter).

But as we all are painfully aware, ignorance of the law is the bread-and-butter of law enforcement. Detective Dennis Smith signed the “mythical” document [PDF] all the way back in 2010, “binding” his agency to an agreement it could have walked away from at any time with zero consequences. (Well, maybe the loss of future business deals with Harris, but no violations of state or federal laws.)

Disappointingly, state legislators seem pretty cool about being kept in the dark by a government contractor’s bogus NDA.

[L]awmakers are some of the “worst at keeping secrets,” said [Greg] Lavelle, the Senate minority whip.

“I’m not offended that they threw public officials in there (the non-disclosure agreement),” he said.

Lavelle may not speak for the rest of the Delaware legislature, but at this point he has to. All other legislators refused to answer questions about the Harris NDA that allowed the State Police to hide information about surveillance equipment from them. Finding out agencies they oversee have been effectively lying to them should have triggered more of a response. Instead, Delaware residents get a single shrug from a state rep and silence from the rest.

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Comments on “Harris Stingray Nondisclosure Agreement Forbids Cops From Telling Legislators About Surveillance Tech”

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29 Comments
That One Guy (profile) says:

"OUR stuff isn't being scooped up, why would we care?"

Lavelle may not speak for the rest of the Delaware legislature, but at this point he has to. … Instead, Delaware residents get a single shrug from a state rep and silence from the rest.

He didn’t have to, but with silence from the others he did anyway, and the message sent is crystal clear: ‘We don’t know, and we don’t want to know, what’s being done. We are absolutely fine with the police lying to us and the courts, and we see nothing objectionable in that act.’

Or to put it another way: ‘Please remove us from office as soon as possible, we are too lazy and/or incompetent to actually do our jobs.’

Anonymous Coward says:

Stingrays are illegal

By nature, they violate the wavelengths that have been sold to companies for exclusive use. They pretend to be a valid signal and overpower read towers forcing your phone to connect to them. They are not usable by the public and the local police have no exceptions to use them for non emergency purposes. Every single use is illegal.

Bergman (profile) says:

Re: Re: Stingrays are illegal

All law enforcement exemptions — including federal law enforcement — to laws such as various wiretapping statutes (both state and federal) and even the Computer Fraud and Abuse Act, all require that the law enforcement agency in question have a warrant.

Without a warrant, they don’t qualify for the exemption, and interception, tapping and unauthorized access are all felonies.

By claiming that devices such as Stingrays do not require a warrant, the government is proclaiming that use of such a device is not tapping a wire, not intercepting an electronic communication and not unauthorized access of a computer.

When legislatures and courts agree with the executive branch interpretation that no warrant is required for use of a Stingray, they intend for it to only become warrantlessly-legal for police to use, but the nature of our legal system in the US means they become legal for EVERYONE to use.

So, in places like Delaware, if you want to use a Stingray to find out what your legislature, the cops or anyone else is talking about, just go get one yourself (or make one, they’re not too hard to build) and have fun with it. It’s not illegal to do so.

Anonymous Coward says:

Of course you’re allowed to use parallel construction in court.

In fact, you always do: you “develop leads” using a variety of more-and-even-more-unreliable techniques–but you’ll look for good evidence to corroborate. In court, with limited time available to present your case, you’ll present only the good evidence.

Everybody does this. Everyone, including the various governments, has always done this. Parallel construction is never, and has never been the problem, and can’t be a problem.

No judge in any court will ever tell a lawyer: “that’s good and reliable evidence you’ve presented, but don’t you have any unreliable evidence you could add? and, while we’re at it, why didn’t you try to admit any inadmissable evidence? I really need you to waste some more of my time.”

The problem is not unpresented evidence related to the guilty party. It’s the evidence related to innocent parties which is collected and kept for future reference by police–and, of course, for perusal by criminals who hack into the police database.

That One Guy (profile) says:

Re: I can't quite get my head around how this is legal.

Because anything is ‘legal’ if no-one with the power to hold you accountable has any interest in doing so.

The police clearly have no problem with it, the courts give it a dismissive shrug or at most a wagged finger, the local legislators are apparently quite happy in their willful ignorance, the DA probably couldn’t care less so long as it helps secure convictions, the FBI and DOJ, same.

Between investigation and conviction there is no-one with any interest in pushing back, and even the defense is likely out of luck, as first they have to find out that it happened(good luck with that), and then convincing the judge that not only what happened isn’t acceptable, but that ‘good faith’ shouldn’t apply.

Anonymous Coward says:

Re: Re: Re: I can't quite get my head around how this is legal.

Couldn’t a case be made that the police officials aren’t permitted to sign contracts that locks out elected officials?

Or if they can sign them, the courts shouldn’t uphold them. But are the officials really "locked out" if they’re not trying to get the data? They could file a subpoena but evidently don’t care.

Anonymous Coward says:

Re: I can't quite get my head around how this is legal.

How can it be legal for police to not have to disclose something to elected officials?

Because the elected officials have not requested the release of these records in any legally binding way. They could pass a law, issue a subpoena, or maybe use a FOIA-like law, and then the police would be required to comply. If the officials don’t ask, the police have to duty to hand over all their information.

ThaumaTechnician (profile) says:

Re: Re: I can't quite get my head around how this is legal.

Individuals can do anything unless there’s a law that specifically forbids something/that thing.

Governments, on the other hand, can do nothing unless there’s a law that specifically authorizes a particular action.

The police shouldn’t be allowed to sign contracts (especially with NDAs) unless there’s a law that specifically allows it. Elected officials should be allowed to revoke signing authority that’s been given.

Bergman (profile) says:

Re: Re: Re: I can't quite get my head around how this is legal.

Additionally, it is unconstitutional to create a less privileged class of citizen. Nowhere in any Constitution is there any definition of how large or small a class must be that it be unconstitutional to restrict its privileges.

Case law/precedent is superior to doctrines (also called common law). Statutes are superior to case law. Constitutional law is superior to statutes.

If a statute cannot constitutionally do something, then mere case law or common law cannot.

Uriel-238 (profile) says:

Still not understanding how "good faith" is seen as anything but a giveaway.

Regarding _good faith_ I’m still not sure how that is a falsifiable claim. _Every_ officer can claim good faith, and no one can prove bad faith. No police officer has ever been reprimanded for bad faith. Yeah _good faith_ only comes up when an officer needs to pretty-plead with a cherry on top.

That One Guy (profile) says:

Re: Still not understanding how "good faith" is seen as anything but a giveaway.

Regarding good faith I’m still not sure how that is a falsifiable claim.

Barring some extreme edge case, like finding a note where the officer(s) in question flat out admitted ‘Yeah, I know this is illegal, and I’m doing it anyway’, it isn’t really, as it would require mind-reading.

The closest you could really get is that a particular person should have known better, and even then good luck proving that, especially given that ‘good faith exception’ rewards ignorance(or at least claims of it), such that those with badges are better off being as ignorant of the law as they can be.

It’s one of those idea that might seem to some to be somewhat reasonable at first glance, but where even the slightest bit of digging reveals some major problems and even worse incentives.

Uriel-238 (profile) says:

At this point it might be time to pressure the police precinct-by-precinct.

Maybe we can get precinct captains to commit to only using policing techniques that are approved of by a third party, one that stays unaligned to institutions but minds sound science and human rights.

It would be a long shot, but that is the only method I can see for reform that might restore some trust by the public in law enforcement.

Uriel-238 (profile) says:

Without rule of law (equal treatment under law) there is no law.

We already have established that the Sheriffs departments, ICE, CBP, DEA, FBI and DHS have no actual interest in enforcing law, rather are looking for ways to extend their own revenues. They are all criminal, and act like organized crime except that there is no tribunal in power with the authority to try them.

This gives rise to challenges to the legitimacy of the courts of law and the legislators that define what the law is, especially since both have refused to enforce integrity of law enforcement.

This is basic poly-sci: Law enforcement holds a monopoly on legitimate force on the contingency that they use that force to carry out the will of the state (and for no other cause) and only if the state’s will is, by all reasonable assessment, fair and just. If the police use their force arbitrarily, in defiance of an informed court, they lose that monopoly. If the state fails to govern reasonably, they lose that monopoly.

In this case, we have both conditions. The state is arbitrary and uneven in its governance. But then the police are not even telling the courts what they do. And they lie to the court often with impunity.

Ergo, the law enforcement agencies of the US have no legitimacy in their use of force. They kill because they can and no-one is stopping them. Jungle law.

The police stay in power out of habit and because they have all the guns. They use force arbitrarily, and they don’t seem to care much what the state thinks. (And it’s not like the state has been showing much good governance.)

It means if someone else outgunned the police, or served the same function that the police [are supposed to] do, these new gangsters / warlords / civic-minded vigilantes would have he same legitimacy state agencies.

Wendy Cockcroft (user link) says:

Re: Without rule of law (equal treatment under law) there is no law.

It means if someone else outgunned the police, or served the same function that the police [are supposed to] do, these new gangsters / warlords / civic-minded vigilantes would have he same legitimacy state agencies.

I get where you’re coming from in theory, Uriel, but in practice… can I watch?

Uriel-238 (profile) says:

Re: Re: Be careful of what you wish for.

The the current state of cease-fire in Northern Ireland is uneasy, and if that sparks up again, we’ll be seeing far more challenges to legitimate force than we want.

Here in the states, the police are cheaply bought off once gangs control a community. The most impressive are the Tongs, who control Chinatowns in the US all the way from their homeland.

cattress (profile) says:

I’m a Delaware resident, and I know I read some where a couple of years ago that our police had these devices and the NDA. It is of absolutely no surprise that only one law maker was willing to comment, there is a ridiculous number of ex-cops in our senate and house, and anyone that wasn’t a cop is a badge-licker anyway.
Our state has this thing called SLEAF, which are the funds from civil asset forfeiture, which the police are free to collect and spend as they see fit. Only recently did we get a pathetic concession that SLEAF was no longer exempt from FOIA- except the police get to decide exactly what, if anything, is not actually exempt. Stingrays were almost guaranteed to have been purchased using secret SLEAF money.
So parallel construction, probably rampant and not likely to come to light because prosecutors have no problem waiting out defendants – incarcerated in a prison (jail overflow) that rioted over conditions a year ago- reluctant to take a plea deal. We’ve passed bail reform, but we have yet to see how it will be enacted.
It doesn’t surprise me that our cops use secret technology to subvert our rights instead of actual police work within the bounds of the law. After all, when my Mom’s car was stolen and we went to the station to get the release paperwork when it was found, we asked the cop “are you done collecting evidence and prints from the car so we can take it home?”, the response was “We’re not Columbo ma’am” (Hmm, suddenly makes sense as to why there was bullet proof glass between the officers and the general public interacting at a reception area)

Anonymous Coward says:

Nip it in the bud

I’m no lawyer but would it be possible to just make people who try to put ‘no disclosing evidence of our crime’ lines in contracts automatically guilty of obstruction of justice or something? With or without additional legislation?

Because these contract lines being enforceable is complete bullshit and is wrong both morally and logically makes about as the court finding hitmen liable for not murdering their target.

David says:

I'm with Lavelle here

[L]awmakers are some of the "worst at keeping secrets," said [Greg] Lavelle, the Senate minority whip.

"I’m not offended that they threw public officials in there (the non-disclosure agreement)," he said.

You know, neither am I offended when criminals try not to be noticed by officials. Particularly when they profit from involving police in criminal endeavors.

What I am missing is the continuation of "Of course, this needs to stop now, the people responsible for this criminal scheme need to be prosecuted and receive appropriate jail terms, the company needs to get disbanded and its assets used for dealing with the cost of this mess: all cases prosecuted with alternative reality evidence need to be rechecked, convictions made with illegally obtained evidence overturned and damages paid. U.S. citizens must be able to rely on being prosecuted according to U.S. law."

But I’m sure that’s what Lavelle has said afterwards: after all, he is one of many tasked with making sure that the Constitution is upheld, if necessary by crafting laws supporting it. Too bad the media stopped quoting him at that point.

DannyB (profile) says:

I've said it before

According to the FBI, public safety would be irreparably damaged if Stingray details were exposed.

That statement reinforces something that I’ve said here and elsewhere multiple times in the past.

Why is Stingray such a big secret? Two theories:

  1. When the cell phone protocols and system was designed, it was in a world were security was lower priority than today. Some vulnerability has been discovered and exploited. That vulnerability is the basis of how Stingray works, e.g. "the secret".

  2. Stingray is able to spoof a cell tower because it uses stolen crypto keys and/or authentication credentials from multiple cellular network operators. These stolen credentials are "the secret".

In either case, if "the secret" were known, then any old teenage hacker with some electronics and microcontroller knowledge could build their own stingray. Suddenly poor people could spy on rich people! (gasp!) And THAT! folks, constitutes irreparable harm to the public.

orbitalinsertion (profile) says:

"I’m not offended that they threw public officials in there (the non-disclosure agreement)," he said.

Irrrrrrrrelevant!

Legislation and law enforcement should not be predicated upon whether some sitting fsckwit is offended or not. (Of course that is a part of their personal reasons for making law or holding anyone accountable, but you aren’t supposed to say it out loud.)

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