South Carolina Legislators Introduce Three Bills Targeting Police Stingray Use

from the some-fullwits-hidden-among-the-halfwits dept

It's really, really difficult to give the South Carolina legislature any credit whatsoever. In the past few years, it has offered up bills that:

- required journalists to register with the government before enjoy their First Amendment rights (to make a point about the Second Amendment)

- criminalized profanity in public forums (including the internet)

- criminalized the recording of criminal acts

- required computer sellers to install default porn blockers in devices (that could be removed for $20)

The track record of this state's legislature is less than stellar. Hell, it's less than passable. 1/5 would not re-elect.

But there are still a few legislators with good ideas trying to do good things within the confines of a state where adultery is still considered a criminal act. The Tenth Amendment Center briefly highlights three new bills targeting law enforcement Stingray device use, all with their own merits.

The first, brought by state rep J. Todd Rutherford, is the most extreme of the three.

The legislation would prohibit any state or local law enforcement agency in South Carolina from purchasing cell site simulators, commonly known as “stingrays.”

At this point, use of these devices by South Carolina law enforcement is unconfirmed. If, indeed, no agencies are in possession of IMSI catchers, this bill would maintain the status quo. If agencies are already in possession of the devices, the bill would require these agencies to discontinue use and... ask Harris Corp. for a refund, I guess. This wouldn't prevent state agencies from asking for federal assistance and borrowing their devices, but it's still the most restrictive Stingray-related legislation proposed yet.

As such, it will probably never become law. The other proposals have a much better chance of reaching the governor's desk. Rutherford's backup proposal would prevent agencies purchasing cell tower spoofers from entering into nondisclosure agreements with manufacturers.

The third bill being introduced should be pushed in concert with Rutherford's second bill. Rep. Cezar McKnight's proposal would prevent state law enforcement agencies from signing nondisclosure agreements with the FBI, which has been standard procedure since the modified military tech began making its way to police departments around the nation. This would help ensure any evidence obtained with these devices will be properly presented in court, rather than obscured behind parallel construction. Or it could, theoretically. The bill ties this to warrant usage, so nondisclosure agreements would be allowed if the agreement doesn't stipulate the devices should be deployed without securing a warrant first. This ties it to the DOJ's current Stingray guidelines, which is better than continuing to obscure device deployment behind pen register orders.

The FBI's nondisclosure agreements have never specifically instructed law enforcement to avoid seeking warrants. However, the implication of the demanded secrecy pretty much made it impossible to seek a warrant, since doing so would disclose use of the device. Parallel construction was encouraged if warrants were sought and evidence introduced in court, but the FBI never strictly forbade the use of warrants in its nondisclosure agreements. So, the bill should be reworded to forbid entering into nondisclosure agreements with federal agencies and drop the clause tying it to warrant requests.

All in all, it's an encouraging set of proposals, but it's hard to see law enforcement agencies letting any of these make it to the governor's desk without a fight.


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  • icon
    Anonymous Anonymous Coward (profile), 28 Dec 2016 @ 5:47pm

    Maybe

    Maybe a better bill would be one that prohibits both the use of ISMI catchers and parallel construction for any state cases or contribution to Fed cases. This of course would still allow the Feds to prosecute cases with both parallel construction and IMSI catchers within the state, but if worded carefully, no state actor could be involved.

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

    • identicon
      Anonymous Coward, 28 Dec 2016 @ 6:09pm

      Re: Maybe

      Harris Corp is a state actor at this point. Their devices have been used illegally so often that the DOJ literally couldn't operate without them. Just make them point to the actual emergency that allows the devices to be used in the US or have them all prosecuted for illegally interfering with wireless signals and private property. Either way we win some of our freedom back.

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

    • icon
      Rapnel (profile), 29 Dec 2016 @ 3:14pm

      Re: Maybe

      To suggest that we need a new law that "prohibits" parallel construction might, in fact, suggest that we need a new government. One that recognizes and embraces its tenets.

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

  • identicon
    Anonymous Coward, 28 Dec 2016 @ 5:53pm

    - criminalized the recording of criminal acts


    Hey! - do the cops intend on using that against anyone who records them?

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

  • icon
    Groaker (profile), 29 Dec 2016 @ 12:28am

    superiority of NDAs over Court Orders and Subpoenas

    Can anyone explain why an NDA is legally superior to a court order, or a defense team subpoena. I have asked this question in a number of places, but never have gotten an answer.

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

    • identicon
      Anonymous Coward, 29 Dec 2016 @ 6:30am

      Re: superiority of NDAs over Court Orders and Subpoenas

      It shouldn't be, but cop-friendly judges allow them to get away with it.

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

  • identicon
    Quiet Lurcker, 29 Dec 2016 @ 6:04am

    As far as I'm concerned, the first bill is the correct approach to the problem.

    However, it doesn't go far enough. It should state that use or possession of the devices anywhere in the state, for any reason - including for deliver and or use outside the state - is a felony with a mandatory 10-year prison term for the offender. And, any person within the state may examine any police vehicle for the presence of such a device and if it is found, may arrest all law enforcement officers at the scene, whereupon they must be held over for trial - no bail here - and if found guilty, etc. Oh, and while we're at it, if the cops attempt to prevent the search from happening (including by verbally refusing permission), they're presumed guilty.

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

    • identicon
      Anonymous Coward, 29 Dec 2016 @ 6:49am

      Re:

      "mandatory 10-year prison term"

      Really? Why 10 years? how is that NOT cruel and unusual punishment. Far too many people in this world want to OVER punish people for stupid stuff.

      Get cut off in the traffic? Kill them! Don't agree with your politically? Mass Whitey Genocide! Don't like their culture? Be Racist! Kid smoakin weed? JAIL HIS ASS FOR LIFE!!!!

      Calm the fuck down! Jail for a single year should be good enough.

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

      • identicon
        Anonymous Coward, 29 Dec 2016 @ 8:04am

        Re: Re:

        Authoritarians love going off the deep end, just look at how stupid mandatory sentencing is.

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

      • icon
        Groaker (profile), 29 Dec 2016 @ 9:33am

        Re: Re:

        It sounds a little steep, but the Federal penalty for a single wiretap can be five years in jail, and a $250K fine.

        Feds do thousands of illicit wire taps, sell thousands of weapons to known criminal mobs, distribute a million or more new images of pedophilia not previously seen, violate innumerable laws on torture and endlessly break other laws.

        Local law enforcement gets away with every crime in the book. From littering to murder, larceny to rape, perjury to torture. Jundges often refuse to look at video tapes of cops committing crimes.

        When laws are equally enforced, when punishments are equal (they really should be higher for LEOs, but I will settle for equal) then we can talk about calming down.

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

      • identicon
        Quiet Lurcker, 29 Dec 2016 @ 10:41am

        Re: Re:

        As other replies have pointed out, I wouldn't recommend such harsh response *if* the law - finally, all laws - were enforced fairly and equally, meaning, if the cop does the crime, (s)he does the time.

        Sadly, that is far from being the case, as witness: The cop who draws his weapon on an unarmed citizen minding their own business; or (as in one video I watched) a bystander apparently getting between a violent cop and their suspect (read, "intended victim"); The cop who guns down an innocent, mentally disabled person in the middle of the street and can't provide any explanation other than "I don't know why I shot him"; The cop who serves an apparently invalid search warrant, handcuffs the family involved, and posts the pictures to a social media site; The cop who is VIDEOTAPED shooting a man IN THE BACK as he runs away....

        I could go on and on, at nauseating length, but won't.

        Suffice it to say, until the cops - from the newest recruit to the most seasoned veteran - learn that there are rules and laws they must follow no matter what; until the prosecutors hold the cops - again at all levels - accountable for their actions; until the courts do their jobs, protecting the rights of innocent and accused alike, irrespective of their status - money, income, skin color, age, what-have-you - then, the only possible response is to treat the cops, courts and prosecutors like two-year-olds: make the consequences of their decisions immediate, painful, and expensive to them personally.

        Some won't learn the lesson. Others (hopefully) will take the examples of the ones who don't learn to heart and clean up their act.

        And when the cops, courts, and prosecutors alike learn the necessary lessons, then, THEN we can consider reducing the consequences.

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

      • identicon
        Anonymous Coward, 29 Dec 2016 @ 11:30am

        Re: Re:

        Calm the fuck down! Jail for a single year should be good enough.

        Not really, considering the implications.

        When you consider that you're potentially facing a $150k fine for each instance of copyright infringement (with the logic being that such a high fine acts as a deterrent), why wouldn't a 10 year sentence be prudent?

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


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