from the fake-it-til-you-make-it dept
The concept of "checks and balances" kind of takes a beating when one branch of the government says it's ok to lie to another branch. We've already seen the FBI tell law enforcement agencies -- through extensive NDAs it makes them sign before they can deploy cell site simulators -- that it's better to let suspected criminals walk away from charges than risk allowing details on Stingray devices to make their way into the public domain via submitted evidence.
Many law enforcement agencies appear to be doing exactly that. More than one agency has misled judges with applications for pen register orders and requests for cell site location data -- neither of which provide details on the technology actually being used.
Another memo from the FBI shows the federal agency directly instructing a local law enforcement agency to engage in parallel construction. The memo, obtained by Oklahoma Watch, explicitly spells out what is supposed to happen if cell site simulator use is part of the evidence chain. (h/t Nate Wessler)
Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials. This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment.The problem is that this sort of "lead" often leads directly to search warrants of residences where people are located. The Oklahoma City PD is being told to obtain other non-Stingray-related data that could plausibly explain how it managed to located Subject X at Location Y. Officers won't be telling magistrate judges when seeking pen register orders or subpoenas for cell location info. And officers won't be telling defendants or their representation how they managed to be in the right place at the right time with a search warrant.
The memo also notes that the FBI "will use all appropriate legal means" to prevent Stingray use from being uncovered in discovery requests. Apparently, "all appropriate legal means" covers parallel construction.
What sets this apart from the FBI NDAs we've covered here previously is that this memo is limited to the local law enforcement's borrowing of FBI equipment to locate suspects. With the FBI still in control of the device, it's obviously going to be that much more concerned with controlling the narrative.
Clifton Adcock of Oklahoma Watch notes that local law enforcement appears to be using Stingray devices but covering it up through pen register orders. In one case, this has led to a very suspect request from the Oklahoma City PD, suggesting it had borrowed an FBI cell site simulator to locate the defendant.
In one of those cases, a defense attorney, Douglas Parr of Oklahoma City, said he believes a cell site simulator was used to collect his client’s phone data. The client is charged with drug trafficking. During a hearing in Oklahoma County District Court in September 2015, Parr asked an Oklahoma City police detective whether a simulator had been used. The detective, who had requested the order, testified that to his knowledge such a cell site simulator had not been used.According to the FBI's new rules for Stingray use, warrants must be sought and provide explicit details about the technology being used -- including the facts that Stingrays search every phone in the area while trying to locate devices and that local service may be disrupted during deployments. The DOJ's ruleset arrived a few months after this particular Memorandum of Understanding was signed with the Oklahoma City PD. One would hope a revised version is on the way, if not already in the hands of Oklahoma law enforcement -- one that does a better job of reflecting the DOJ's current stance on warrants and information dissemination.
Testimony in the case shows the officer did not file for a trap and trace order with the court until the day he testified in September – more than a year after he conducted the surveillance.