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.

The "clarification" seems to contradict a great deal of what the FBI's own NDAs require.

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.

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  • identicon
    Anonymous Coward, 18 May 2015 @ 12:51pm

    Phone option to prevent dropping to 2

    Drawing a blank on the term, but can't we get an app which alerts the user, and allows them to approve dropping a phone into mode 2? Isn't that what's required for the FBI to break the encryption?

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

    • identicon
      Anonymous Coward, 18 May 2015 @ 1:00pm

      Re: Phone option to prevent dropping to 2

      That assumes that the baseband processor tells the main processor what it is doing, and that stingray cannot reprogram it on the fly.

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

  • identicon
    Anonymous Coward, 18 May 2015 @ 1:08pm

    Haven't we learned from the James Clapper?

    To the government clarify just means lie.

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

  • icon
    dfed (profile), 18 May 2015 @ 1:20pm

    I am almost amused at how similar the tactics of denial the government uses are similar to the ones used by organized crime.

    "What? I never said he had to pay the money for protection, I have no idea where he got the idea that his kneecaps would be terribly destroyed by a power drill if he didn't cough up. That's all in his head!"

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

  • identicon
    Personanongrata, 18 May 2015 @ 1:41pm

    FBI Non-Disclosure Statements Are Tyranny

    The duplicitous cretins of the Federal Bureau of Investigation would like to redefine the term non-disclosure statement to mean whatever the FBI's clarifying remarks say it means.

    The secrecy in place surrounding the stringray program is there not to keep the criminals unaware of it's existence but rather to keep US citizens from seeing the US governments unbounded tyranny on full display.

    Did the agents of the FBI swear an oath to uphold the US Constitution or did they swear an oath to uphold clearly unconstitutional laws enacted by criminal politicians in the US Congress or clearly unconstitutional methods of evidence collection originating from within the Department of Justice?

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

  • identicon
    avideogameplayer, 18 May 2015 @ 2:29pm

    I keep hoping that cases do get dropped...when someone decides to do the same thing again KNOWING that the FBI would let them ago, AGAIN...everyone will looking at the FBI amd wondering WTF?

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

  • identicon
    Ven, 18 May 2015 @ 3:18pm

    My lay reading of the NDA

    From my IANAL reading of this NDA it sounds like the FBI has said you can use the resulting evidence ("An electronic log proves this guy was at that place at this time.") but not disclose how that evidence was obtained.

    This feels oddly like the FBI is telling us that they won't allow us to see the meta-data (product model, collection methodology, etc), but we can see the data (actual collected evidence), strange isn't it.

    The "Right to face your accuser" has repeatedly ruled to included the right to challenge how evidence was gathered, the FBI knows this practice is unconstitutional, but they want to keep this tool around for those that don't lawyer up, or can't afford a lawyer, so they won't let it go to court.

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

  • identicon
    Dyspeptic Curmudgeon, 19 May 2015 @ 4:35am

    How does the FBI get in the middle in the first place?

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

    • identicon
      Dyspeptic Curmudgeon, 19 May 2015 @ 4:42am

      Re: How does the FBI get in the middle in the first place?

      I would like to know how the FBI has any right to even ask for this NDA. The cops *buy* from Harris, not the FBI. Where/how do the FBI get to demand an NDA? Is there some obscure section which lets the FCC pass oversight of cellphone tower like broadcasting to the FBI? Or allows the FBI to allow hacking the phone system when *they* approve?
      The nature and source of this 'power' would be interesting to know.

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

  • identicon
    AC, 19 May 2015 @ 12:04pm

    The rest of us

    Everyone else is wondering why the local police, FBI, DHS, DEA, NSA, etc. aren't in prison for their massive, illegal, domestic spying activities.

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

  • identicon
    Anonymous Coward, 20 May 2015 @ 1:17am

    It's probably an illegal contract. If a state proceeding went forward anyway, it would probably end up with a 10th amendment showdown at the supreme court where Harris would lose. They probably just aren't interested in doing it.

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

  • identicon
    Robert Driggers, 21 May 2015 @ 12:54am

    They should be arrested

    Can someone explain to me how a Sheriff (or any law enforcement official for that matter) can sign an NDA from ANYONE that prohibits compliance with the law. Judges, prosecution and defense teams cannot have information withheld from them and the act of doing so is a violation of law. To sign an agreement reflective of the same is conspiracy to commit said offense. All should be jailed.

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

  • identicon
    Anonymous Coward, 23 May 2015 @ 4:56pm

    I find the FBI's transparency through the use of word play, extremely misleading.

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

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