The incredible wall of secrecy erected by law enforcement agencies around their use of "stingray" devices (cell tower spoofers) continues. Harris, the manufacturer of most of these devices, gets the secrecy ball rolling with non-disclosure agreements, which law enforcement agencies have liberally interpreted as a right to refuse public records requests and, in one case, an excuse not to seek warrants before deploying the devices.
In a very surprising move, the US government has inserted itself between a Florida police department and the ACLU by seizing requested documents. The ACLU has been seeking information on the Sarasota Police Department's use of cell tower spoofers, only to find itself being further separated from the relevant documents every step of the way.
The reason the ACLU wanted to dig deeper into the Sarasota PD's files presented itself in the first response.
The Sarasota Police initially told us that they had responsive records, including applications filed by and orders issued to a local detective under the state“trap and trace” statute that he had relied on for authorization to conduct stingray surveillance. That raised the first red flag, since trap and trace orders are typically used to gather limited information about the phone numbers of incoming calls, not to track cell phones inside private spaces or conduct dragnet surveillance. And, such orders require a very low legal standard.
Trap and trace/pen register statutes are routinely being abused as a way to route around warrant requirements. The NSA's bulk record collection was partially "justified" by a very liberal reading
of pen register statutes. What once was a warrantless, targeted, limited-time collection has now become a catch-all for stingray surveillance and NSA programs.
The Sarasota Police set up an appointment for the ACLU to view its stingray files (as is required under Florida law), but that meeting was cancelled shortly before it was supposed to take place.
[A]n assistant city attorney sent an email cancelling the meeting on the basis that the U.S. Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.
This interdiction by the US government to lock up documents the ACLU is seeking is astounding enough, but what every other entity involved did is even more so.
Nathan Wessler at the ACLU points out that, US Marshals or no, the police department is required to hold onto any documents requested for at least 30 days. Instead, it allowed the US Marshals to move the records off-site to an undisclosed location. With those files out of reach for an undetermined amount of time, the ACLU approached the court which would have signed off on trap and trace orders requested by the Sarasota Police only to find out that no such records exist.
The court doesn’t even have docket entries indicating that applications were filed or orders issued. Apparently, the local detective came to court with a single paper copy of the application and proposed order, and then walked out with the same papers once signed by a judge.
Another breach of records requirements and, again, tied to the Sarasota PD's stringray usage.
The ACLU has now filed an emergency motion seeking to block the Sarasota PD from turning over any more files to the US Marshals Service. It also asks the court to find that the department violated state law by turning over the requested documents to the US government.
The obvious question here is why both of these agencies are so reluctant to turn over these documents. If they're willing to break state records laws (the local court being complicit in this activity), the information contained must be pretty damaging. What has been discovered already points to the department's deliberate avoidance of a paper trail, what with the single document requests and the misuse of the trap and trace statute to avoid filing warrant requests.
If you've got nothing to hide
, then you have nothing to fear, as the saying goes. The government expects us to live by that adage as it deploys warrantless surveillance, but it seems unable to hold itself to the same standard.