Boston Police Hiding Administrative Stingray Docs Behind 'Investigatory Materials' Exemption

from the we're-not-gonna-talk-about-Stingray...-in-fact,-we're-gonna-leave-her-ri dept

More Stingray secrecy. MuckRock has been tangling with Boston's police department for several months over the release of Stingray-related documents. So far, the BPD has managed to keep these out of MuckRock's hands.

The first response it offered when denying Mike Katz-Lacabe's request was filled with boilerplate and nearly nonsensical legalese.

The information you have requested is exempt from disclosure by MGL c. 4s. 7(26)(f) and (n). Disclosure of the information contained in these documents would not be in the public interest and would prejudice the possibility of effective law enforcement. More specifically, the protection of such investigatory materials and reports is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus protect the safety of private citizens.
There's a healthy debate to be had about whether Stingray surveillance is in "the public interest," but that debate necessarily includes the public, and the denial of this request cuts the public out of the loop. Arbitrarily deciding whether or not a document is in the "public interest" shouldn't be left entirely in the hands of the agency seeking to withhold information -- any "prejudicing" of "possibly effective law enforcement" notwithstanding.

MuckRock appealed this decision. The state stepped in and told the Boston PD that it couldn't just issue boilerplate without explanation in response to these requests.
Your response states that the Department is withholding the responsive records because disclosure would not be in the public interest and would prejudice the possibility of effective law enforcement. You also state that withholding such information is essential to ensure that the Department can continue to effectively monitor criminal activity. However, this response does not explain how these requested records pertain to an ongoing investigation, confidential investigative techniques, or witness statements and also fails to demonstrate how disclosure of these particular records would prejudice investigative efforts as required by Exemption (f). With regard to Exemption (n), this response merely cites the exemption and does not address the security-related rationale needed to justify withholding records under this exemption.

As a result, the Department has failed to satisfy its burden of proving with specificity why the responsive records may be withheld in their entirety under Exemption (f) and Exemption (n). The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O(a). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and Regulations.

Accordingly, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Katz-Lacabe with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide to Mr. Katz-Lacabe a written explanation, with specificity, how a particular exemption applies to each record.
Well, the Boston PD has fulfilled the letter of the state's order, and has provided Mike Katz-Lacabe with a more verbose answer, albeit one that is completely unchanged in terms of results. No documents will be released but, hey, at least the explanation runs an additional half-page!
More specifically, disclosing the existence of and capabilities provided by the type of equipment/technology referenced in your request would reveal sensitive technological capabilities possessed by the Department, and other members of the law enforcement community, and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement. This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal investigations. Additionally, the information contained within the requested documents could be used to construct a map or directory of jurisdictions that possess the investigative capabilities, thereby providing further information for potential suspects that could be used to evade detection.

Through public disclosures, the use of this technology will be rendered essentially useless for future investigations. In order to ensure that such and any information related to its functions, operation and use, is protected from potential compromise it is not subject to disclosure as a public record.
As MuckRock's Shawn Musgrave points out, the BPD has dropped its unexplained (n) exception ("likely to jeopardize public safety") in response to the state's clarification orders, but it still is claiming the documents sought are "investigatory materials," even though they really aren't.
Mr. Katz-Lacabe has already filed a subsequent appeal to the state. He contends that his request for fiscal documents and non-disclosure agreements — which all state and local law enforcement agencies are required to sign with the FBI prior to acquiring cell phone tracking devices — do not qualify as investigatory materials.
And they aren't. The FBI issues a slightly-tweaked boilerplate itself -- the NDAs it forces local law enforcement agencies to sign. Fiscal documents reveal little about capabilities and, depending on the extent of the redactions -- very little about what, if any, equipment is in the possession of these agencies. None of the requested documents come anywhere close to providing specifics about past or ongoing deployments.

The BPD's extreme reluctance to release these documents could very well trace back to the non-disclosure agreement it won't release. It may also be concerned that fulfilling this request could result in the release of actual investigatory materials by mistake -- a concern many agencies share after FOIA requests have resulted in "oversharing" by inexperienced FOIA response staff. No matter what the rationale for the full non-disclosure, the BPD's reliance on these exemptions for these specific documents is clearly bogus.






Reader Comments

The First Word

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 19 Jun 2015 @ 4:22am

    To "monitor and control criminal activity"...
    I wonder how much control they have over it... Maybe they are hiding a huge conspiracy and the whole "crime" thing in Boston is just a bunch of cops afternoon theatre play.

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

  • icon
    Anonymous Howard (profile), 19 Jun 2015 @ 4:46am

    As good as confirmation

    As we've been told: "If you've got nothing to hide, you've got nothing to fear"

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

  • identicon
    David, 19 Jun 2015 @ 4:48am

    Come again?

    More specifically, the protection of such investigatory materials and reports is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus protect the safety of private citizens.

    Are they running a crime syndicate and protection racket or law enforcement here? They are not supposed to monitor and control criminal activity. They are supposed to stop it.

    Are they delivering "criminals on demand" to DA and prison?

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

  • icon
    Bamboo Harvester (profile), 19 Jun 2015 @ 5:04am

    sensitive technological capabilities

    I'm starting to wonder if they're not releasing Stingray specifications because it's "easy" to detect and/or block. Perhaps it has a unique identifier that can be mapped around easily, which would mean an app for phones would be released about three nanoseconds after the specs became public.

    The stonewalling doesn't really make sense for any other reason at this point. It's not like they're going to stop using it, no matter what a court tells them to do.

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

    • icon
      Agonistes (profile), 19 Jun 2015 @ 6:16am

      Re: sensitive technological capabilities

      You probably aren't far off the mark. We all know that .gov works very hard on the "security through obscurity" doctrine which most know is the hallmark of no security at all: great minds think up the perfect solution, enshrine it in law, then when its shown how fragile and worthless their solution is - obfuscate to the point of absurdity until forced to change. Rewind, hit play...ad infinitum.

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

    • icon
      John Fenderson (profile), 19 Jun 2015 @ 8:00am

      Re: sensitive technological capabilities

      It is easy to detect and block, because in order to do its thing it must force your phone to fall back to 2G. You can detect that, and you can make your phone refuse to fall back.

      At least one of the "privacy phones" you can buy will do this out of the box, and I assume that apps have been created to let other phones do it. I've never sought them out because I cobbled together my own solution.

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

      • icon
        nasch (profile), 19 Jun 2015 @ 1:29pm

        Re: Re: sensitive technological capabilities

        It is easy to detect and block, because in order to do its thing it must force your phone to fall back to 2G.

        What if you have wireless data turned off completely?

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

        • icon
          John Fenderson (profile), 20 Jun 2015 @ 10:01am

          Re: Re: Re: sensitive technological capabilities

          The "G" used also affects how plain old phone calls are handled, but this gets a bit complicated. Turning off wireless data does not necessarily mean that your phone calls aren't being handled with the 3/4G infrastructure. The important part of the "G" specs for this discussion is how how the security of call setup works. The security prior to 3G is broken, which is what allows stringray to work, and is why stringrays try to force everyone's phones to fall back.

          There are plenty of caveats, though, so this is more like a rule-of-thumb thing than an ironclad rule.

          4G, however, simplifies the entire deal. With 4G, voice calls are really VoIP that get sent over the data network. From a security point of view, the current ideal would be to lock your phone to the 4G protocols, period.

          The tradeoff, of course, is that phones fall back to earlier technologies for a reason: the newer techs do not work everywhere under every circumstance, so your phone falls back to ensure that you can still use it when that happens. If you prevent fallback, then it increases chances that you can't make/receive phone calls.

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

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 5:27am

    Batteries

    Privacy conscious people that didn't want to be tracked used to take the batteries out of their cell phones when not in use. Now, most new cell phones have batteries that can't be removed. Coincidence? Consider that cell phone manufacturers totally depend on keeping government licenses in order to stay in business.

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

    • icon
      John Fenderson (profile), 19 Jun 2015 @ 8:04am

      Re: Batteries

      Lots of phones don't let you remove the batteries, lots do. For me, a nonreplaceable battery automatically makes the phone unacceptable. When I recently upgraded, there were plenty of options with replaceable batteries, so that wasn't even a tiny problem.

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

      • identicon
        Anonymous Coward, 19 Jun 2015 @ 10:11am

        Re: Re: Batteries

        "When I recently upgraded, there were plenty of options with replaceable batteries, so that wasn't even a tiny problem."

        OK, so which model did you choose?

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

        • icon
          John Fenderson (profile), 19 Jun 2015 @ 10:32am

          Re: Re: Re: Batteries

          Samsung Galaxy

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

          • identicon
            Anonymous Coward, 19 Jun 2015 @ 10:42am

            Re: Re: Re: Re: Batteries

            "Samsung Galaxy"

            Must not be the new version, as it no longer has a removable battery.

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

            • icon
              John Fenderson (profile), 19 Jun 2015 @ 12:43pm

              Re: Re: Re: Re: Re: Batteries

              It's an S5. They may very well have changed it with the S6. However, there are still several other makes and models with removable batteries.

              Since having a removable battery doesn't increase the size or weight of a phone, and there is a demand for them, there will likely be models that support this for some time to come.

              As a point of slight interest, the lack of a removable battery was the reason why, when I got my first smartphone, I didn't get an iPhone.

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

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 5:33am

    It can now be assumed that anybody with reasonable intelligence will assume that the police can at least monitor where you are and who you are talking to and texting, and which websites you visit, when you carry and use a mobile phone. Further most people will assume that conversations, text message and actual web pages are available when stingrays are in use, as the capabilities unknown they will assume the worst, especially given the police reluctance to release any details of stingray capabilities.
    Therefore the only people who will incriminate themselves by their mobile phone use will continue to do so, regardless of whether the capabilities, up to and including the ability to intercept phone calls, text message and emails is revealed or not, as such capabilities can be assumed. It can also be assumed that stingray intercepts all phones that it can convince to connect to it, so its surveillance is not targeted on specific phones. Therefore the question must be what else is stingray capable of, and especially what sort of spyware is it is capable of injecting into mobile phones.

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

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 6:31am

      Re:

      The DEA is already having trouble explaining why they purchased spyware that would work perfectly if deployed via stingray and would give them total control over that phone and any other device it is plugged into or networked devices it encounters.

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

  • identicon
    Anonymous Hero, 19 Jun 2015 @ 6:29am

    > and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement.

    In other words...people may turn off their phones? Why do I get the feeling that within a year or two, someone in gov't is going to float the idea that it should be illegal to turn off a cellphone? I mean, if you can be thrown in prison for clearing your browser cache...

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

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 10:14am

      Re:

      "In other words...people may turn off their phones?"

      Cell phones can still be tracked even when turned off. That's why people remove the batteries.

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

  • icon
    Padpaw (profile), 19 Jun 2015 @ 6:46am

    I am surprised people trust these cops with guns since they are doing everything those that want to restrict the average citizens 2nd amendment rights fear the average person will do.


    namely abuse their access to guns to abuse the rights of others.

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

  • identicon
    RD, 19 Jun 2015 @ 6:57am

    The Public Interest

    "Disclosure of the information contained in these documents would not be in the public interest"

    The public interest *is* in the disclosure of what those who are entrusted and empowered with law enforcement are doing with what is given to them.

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

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 7:23am

      Re: The Public Interest

      Whenever a statement by an organization mentions the public interest, or a company customer benefits or convenience, substitute their for public/customer, and the statement makes a lot more sense.

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

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 8:54am

      Re: The Public Interest

      I think they are worried that if the public knew what they were doing, they would be sued out of existence and people need a police force. It really is for our own good don't you see?

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

  • identicon
    The premeditated violation of the Constitution, 19 Jun 2015 @ 9:58am

    The FBI's NDA show that police & FBI will lie to the courts!
    The lack of proper warrants show a second violation of Constitution.
    The then failure of "DUE PROCESS" a third violation of Constitution.

    The only fair acts by the courts should be throwing out all evidence in all court cases as the courts do not know when the evidence came from a stingray and/or if the stingrays exist in the courts domain. A fourth violation of Constitution.

    UN-Constitutional law enforcement with UN-Constitutional acts by courts of the USA is not what the Constitution requires.

    A Police state exists and the courts are preventing the citizens right to correct the violation of the Constitution!

    With the UN-Constitutional laws passed by the congress used as justification that We the these UN-Constitutional acts are legal!

    "We The People" are now governed by a terrorist police state not a democracy!

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

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 11:06am

    Prevent dropping to 2G

    My understanding is that these devices require forcing the phones to drop into 2G so the encryption can be cracked. Maybe there is an app out there, or maybe the manufacturers can put it a tweak which prevents the phone from automatically entering 2G mode? That would cut off the BPD at the knees.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories

Close

Email This

This feature is only available to registered users. Register or sign in to use it.