District Court Judge Orders Last-Minute Sealing Of Documents Related To Stingray Devices And Cell Tower Data Dumps

from the and-then-seals-the-order-itself dept

The government clearly does not want to talk about its surveillance tools: stingray devices, cell phone tower data dumps, pen/trap registers. This opacity begins at the bottom, with law enforcement agencies conveniently quoting manufacturer non-disclosure agreements as a way to deny records requests or route around obtaining warrants.

When it appears records detailing use of these methods may make their way into the public domain, the DOJ itself steps in (via its US Marshals Service) and seizes the documents. Anything the government has as its disposal is used in order to keep these records out of the public eye.

Cyrus Farivar at Ars Technica brings news that the US government is again inserting itself between public records and the public.

Serving as an outgoing United States magistrate judge, Brian Owsley had decided that one of his final judicial acts would be to unseal more than 100 of his own judicial orders involving digital surveillance that he himself had sealed at the government’s request.

But not long after Owsley's move last year, a US district judge vacated Owsley’s order and resealed them all. That order itself was then sealed.
Brian Owsley notes that this behavior is "not normal."
"I sent in various ways to the government, a number of applications and I said I'm going to unseal these unless you tell me why I shouldn't. These were done in waves. The first wave were completed five years previous, past the statute of limitations, and quite likely no longer really significant. That was the first wave. The government did not oppose unsealing of any of them. So I spoke to the court's office and said to upload them to make them available online, and as they were doing that, somehow this district judge found out about it an interjected himself into the process. If the government has said: 'We don't think these things should be unsealed,' that's one thing. But just out of the blue the district judge interjecting himself, that's a little unusual."
This unusual move prompted another. Dow Jones, the owner of the Wall Street Journal, has filed a motion asking the district court to unseal the documents. The applications the government buried at the last minute include all of those items listed above: stingray devices, cell phone tower dumps and pen register requests.

The thing is that none of these documents should still be sealed. As Owsley states, everything affected deals with closed investigations. There's nothing ongoing and anything the government feels might compromise future investigations should be redacted -- which then can at least be challenged in court, if need be.

The filing notes that the burial of Owsley's orders isn't an outlier.
Magistrate Judge Stephen Smith estimates that tens of thousands of sealed electronic surveillance orders issued by federal district courts remain inaccessible to the public and the press—even long after the investigations underlying those orders have terminated.
The government's antipathy towards FOIA requests continues. And it highlights the incredible hypocrisy of its rationale and actions. According to every law enforcement and investigative agency in the US, Smith vs. Maryland grants no expectation of privacy to information handed over to third parties.

No one in the data collection business wants to be held accountable for abuse or forced to operate responsibly in the future. When the simple invocation of "terror," "drugs" or other criminal activity fails to drive off those seeking documents, the government resorts to other means to keep its actions out of the public eye, whether its extensive, unnecessary retractions or more extreme measures, like refusing to unseal documents.

To these entities, our lives are an open book. But if citizens want to take a look at what the government is doing with this information, or how it obtains it, these entities do all they can to ensure the flow of data remains strictly one way.




Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Michael, Jun 5th, 2014 @ 10:13am

    That order itself was then sealed

    Who can order this sealed? Does the judge that made the order actually get to seal it?

     

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  •  
    icon
    AricTheRed (profile), Jun 5th, 2014 @ 10:35am

    As the 70th aniversary of the D-Day invasion draws near...

    I wonder what beaches I or my children will have to storm to restore the America that my Grandfathers, Grandmothers, and their brothers and sisters, friends and neighbors fought, bled and died for.

    I cried when I, wearing the uniform, as a US Marine carried by grandfathers casket to his grave site. As a WWII sailor he went to far flung places and witnessed horrible things, for the right reasons. His cousin, my cousin that I never got to meet. Cousin Vito my mother always told me about with fond memories, and a profound sadness that we would never meet. Vito Bertoldo, fought the Nazi's in europe and never discussed with the family what he had to do, which caused him to be awarded the Congressional Medal of Honor, to defend his fellow soldiers and in the end the freedoms we are now loosing, and have already lost.

    Now I cry. Not for the loss of the freedoms that they so loved, fought, bled and died to protect. Not for the loss of those that I loved, and learned so much from. But in releif.

    Releif knowing that neither Vito, nor his cousin, my Grandfather, whose casket I carried, whose burial flag I have kept since 1993, never had to see what America has become.

     

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  •  
    identicon
    zip, Jun 5th, 2014 @ 10:38am

    encrypted police radios

    It's also worth noting that many police forces have been rapidly transitioning to encrypted radio, basically shutting out (unauthorized) scanner-listeners. So soon, a traditional pastime for countless retirees and hobbyists (not to mention newspaper reporters) may be no more.

    Indeed, the "Land of the Free" is becoming more and more like the old Soviet Union: "they" know everything about us, while we know nothing about them.

     

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  •  
    identicon
    Anonymous Coward, Jun 5th, 2014 @ 10:45am

    Most Transparent Administration in History

    Well, Obama was right about one thing, we can see right through everything his administration does.

     

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  •  
    icon
    Anon E. Mous (profile), Jun 5th, 2014 @ 10:48am

    Let me guess the Government leaned on a Federal Judge or Federal Judges or went Judge Shopping to find one that would seal everything it wanted.

    It is amazing how far the U.S. Government will go to keep it's methods and tools of how it breaks laws and violates it's own citizen's rights and protections that they are afforded under the constitution with nary a second thought.

     

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  •  
    identicon
    Claire Rand, Jun 5th, 2014 @ 10:59am

    if you have nothing to hide

    you have nothing to fear

    or some such, at least when its the other way round and a government wants to know something, anything, no matter how trivial "just because".

     

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  •  
    icon
    kenichi tanaka (profile), Jun 5th, 2014 @ 11:03am

    What I find truly despicable is that the U.S. Government is using our own tax dollars to keep public information out of the hands of our public.

    The Obama Administration and the court system are nothing more than a circus of morons who are using our own money to keep their secret private activities from being exposed to the public.

    If they aren't doing anything wrong then they shouldn't be concerned with keeping these documents out of the public's hands.

    We're not living in a free society, we're living in a communist society with an evil dictator running things from the Oval Office.

     

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    •  
      identicon
      David, Jun 5th, 2014 @ 12:44pm

      Re:

      We're not living in a free society, we're living in a communist society with an evil dictator running things from the Oval Office.

      In communism, fewer people can afford to buy politicians in bulk.

       

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    •  
      identicon
      Anonymous Coward, Jun 5th, 2014 @ 12:45pm

      Re:

      While I agree with much of what you say, I've got a few corrections:
      1) they're not morons. This is a very well executed power grab. They're highly intelligent, and got away with this right under your nose. You should never have voted these people into office if you consider them to be of extremely sub-par IQ.
      2) you insult communism and communists the world over by saying the US is a communist society -- nothing is being held in common here; it is quickly turning into a fasco-capitalist oligarchy.
      3) no evil dictator here -- the POTUS is almost powerless these days; is actions are being dictated by his advisers, multinational corporate lobbies, and the broken governance system. The only time things seem to get done as intended is during lame duck months.

       

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    •  
      identicon
      Anonymous Coward, Jun 5th, 2014 @ 5:55pm

      Re:

      Communism requires collective ownership of the means of production and distribution. That's so very far from what we have in America. What we have is a kleptocracy.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    jammin2night, Jun 5th, 2014 @ 11:11am

    FCC

    It would seem that these stingray devices would be in violation of FCC rules and regulations.

     

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    •  
      identicon
      AJ, Jun 5th, 2014 @ 11:47am

      Re: FCC

      Sadly, the rules don't apply to them.. just the plebs..

       

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    •  
      identicon
      Anonymous Coward, Jun 5th, 2014 @ 11:48am

      Re: FCC

      Don't take this the wrong way but...

      [citation please]

      You may be right, but if you are going to make a claim like that you really should site which specific rules and regulations you are referring to and how it violates them.

       

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      •  
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        John Fenderson (profile), Jun 5th, 2014 @ 1:09pm

        Re: Re: FCC

        I haven't done my homework in the issue, but here's my layman's take. From the point of view of the FCC, stingray devices aren't substantially different than those active cell phone boosters that you can get on Amazon. The FCC rules require them to be certified like any device that emits RF energy, and they are. Stingray devices very probably are as well, so there would be no FCC violation.

        In terms of actually interacting with the cell system, the rules changed last year (or the year before, I forget) so that what is or is not allowed to do that isn't something that the FCC determines at all -- it's up to the call tower owners, and you are required to get written permission from them to stay within the law.

        I'd be willing to bet that the cops do this with Stingray. The permission can be sought and obtained in complete secrecy, and the telecom companies are always eager to give the cops anything they want.

         

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        •  
          identicon
          Anonymous Coward, Jun 5th, 2014 @ 1:52pm

          Re: Re: Re: FCC

          It's my understanding that the commercially available devices are designed at a very low power such that they have a very limited range similar to WiFi which is why they are exempted from operation without a specific FCC license and subject to the other FCC regulations that stronger transmitters are. I suspect the Stingray devices are much stronger in order to operate through walls and such outside of people's homes at a greater range as to not arise suspicion when they are deployed. The commercial ones also are designed to be configured to route calls using VOIP over an existing broadband connection. I'm not sure how the Stingray one's work with regards to actually facilitating the communication for the calls.

           

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          •  
            icon
            John Fenderson (profile), Jun 5th, 2014 @ 1:58pm

            Re: Re: Re: Re: FCC

            That makes sense. From long personal experience, I can attest to the fact that FCC rules and regulations can rival the IRS for their lack of clarity and simplicity.

            There's no indication that the cops aren't getting such licenses, though. It's just speculation. Also, since the FCC grants secret licenses to some agencies for covert work, such license may not be publicly available for inspection.

             

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            •  
              identicon
              Anonymous Coward, Jun 5th, 2014 @ 6:21pm

              Re: Re: Re: Re: Re: FCC

              I prefaced my question for a reason. I honestly was curious what specific rules and regulations he had in mind, if any, when he posted that comment. I really wanted to know if he had a specific legal theory there that could be explored and honestly I was hoping he did.

               

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  •  
    identicon
    Anonymous Coward, Jun 5th, 2014 @ 12:48pm

    Re:Re: FCC

    [citation please]

    Why would you need a citation? Just try to sue your local PD for release of any information captured by them in other investigations.... You won't be able to. In fact if you keep trying to find out the information, you will find yourself subject to a number of unpleasant personal intrusions. Your banks records, tax records, credit history, posts online and anything that is readily available will be used to find a reason to search your vehicle and home for anything that you might already have on them. This sounds paranoid I know, but go try it. If you find yourself hesitating because there is a very real possibility all of that will happen, you are no longer living in a free democracy.

     

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    •  
      identicon
      zip, Jun 5th, 2014 @ 1:02pm

      Re: Re:Re: FCC

      You're not paranoid, there are many examples of troublemakers ending up being investigated for any 'skeletons in the closet' that can be found. But police are not the only ones doing this, a lot of the "dirty work" is done by ex-cop private investigators, who have a bit more freedom to bend and break the rules.

       

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    •  
      identicon
      Anonymous Coward, Jun 5th, 2014 @ 1:05pm

      Re: Re:Re: FCC

      I didn't say anything about successfully being able to sue the government over any of the violations. That is a completely different matter. The fact that the NSA violates the 4th amendment of the Constitution every day is a completely different matter than being able to successfully sue them over it. He specifically stated that it violated FCC rules and regulations. I just wanted to know which rules and regulations he had in mind and what support he has for that specific argument.

       

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  •  
    identicon
    Anonymous Coward, Jun 5th, 2014 @ 2:30pm

    Sounds like the very definition of tyranny to me. Do as I say, not as I do. The government keeps their actions completely secret, while demanding the ability to read all citizens' lives like an open book.

     

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  •  
    icon
    GEMont (profile), Jun 6th, 2014 @ 2:04pm

    "To these entities, our lives are an open book. But if citizens want to take a look at what the government is doing with this information, or how it obtains it, these entities do all they can to ensure the flow of data remains strictly one way."

    Cannot think of a better description of how things work in a fascist system of public control.

     

    reply to this | link to this | view in chronology ]


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