from the the-latest-in-LEO-tech:-the-warrantless-warrant dept
In a comprehensive look at Delaware State Police usage of Stingray devices at DelawareOnline, there's this very darkly amusing factoid. (h/t Nathan Burney via Brad Heath)
The state Attorney General's Office says police must obtain a warrant to deploy the Stingray, but when The News Journal requested those court orders through a FOIA, state police said none existed.This is a problem. It's not that the state police chose to withhold the information, as it has with several other Stingray-related documents requested by the News Journal and the local ACLU. It's that it says no records exist. This means the warrants the Attorney General says police must use are not being used.
What do appear to be used by Delaware State Police are vague pen register orders that hide from judges and defendants the technology actually being used to obtain this phone data. Public defender John Daniello had one such document turned over to him by the police -- one that apparently was used to deploy Harris Technology's cellphone-tracking technology.
It's a pen register order, with a handwritten "negative on TriggerFish location" scrawled across the top. Daniello's now looking to force the state police to hand over the paperwork it's actually using to deploy cell tower simulators -- which isn't the same paperwork the AG's office has stated must be used.
“I was going to make a stink about it and demand all the information,” Daniello said. “They’re going out and pinging everybody."Daniello's inquisitiveness has already helped one defendant out. Rather than turn cell tracking documents over to Daniello, prosecutors offered his client a "far better" plea deal than they had initially offered.
Daniello said that police are "pulling one over on the courts" by not indicating in the full text of a warrant that cell-site simulators are being used.
The Delaware State Police are following the pattern set by many other law enforcement agencies: claiming their agreement with Harris (and the FBI) forbids any mention of cellphone tracking technology and using pen register orders (which have a lower evidentiary standard than warrants -- information sought must only possibly be "relevant" to an ongoing investigation). The State Police may disingenuously assert the two are roughly equivalent, but the Attorney General's office has explicitly stated Stingray devices can only be deployed with warrants.
This suggests the Attorney General really isn't paying too much attention to what the police are doing with their cell tower spoofers. The following suggests the AG isn't the only person not in the know. The obfuscation of Stingray/TriggerFish deployments is apparently so multi-layered that even the state police find it impossible to locate relevant documents.
The News Journal sent a FOIA request to the Delaware State Police asking for copies of all warrants from adjudicated cases that contained the term “pen register,” the technical term for a call search history. Despite existence of the warrant* issued for Daniello’s client, the agency responded that no records existed.*It's not a warrant.
Police departments sold state legislators on Stingrays by citing terrorism and drug warring. No one asked too many questions because these are Serious Things few legislators could possibly oppose. They allowed hundreds of thousands of dollars to be spent on technology that's being deployed with little to no oversight. Also discovered during the FOIA requests is that the State Police have no written policies or guidelines covering these deployments. The Attorney General may claim a warrant requirement is in place, but -- considering the lack of responsive documents -- it's entirely unclear what he's basing this assertion on.