Feds force cops to mislead re: fake cell phone towers
The Washington Post published a remarkable and disturbing story (Sept. 23) revealing that not just the Harris Corporation but the FBI required local police using IMSI catchers (or "stingrays") to monitor cell phone traffic to sign non-disclosure agreements (NDAs) about their use. The article opened:
The FBI requires state and local police to keep quiet about the capabilities of a controversial type of surveillance gear that allows law enforcement to eavesdrop on cellphone calls and track individual people based on the signals emitted by their mobile devices, according to a bureau document released recently under a Freedom of Information Act request.
The December 2012 document is a heavily redacted letter between the FBI and police in Tacoma, Wash., as the local department sought to acquire an IMSI catcher, sometimes described as a "fake cellphone tower" because it tricks individual phones into routing their calls and other data through the surveillance equipment. The Tacoma police were buying gear produced by Harris Corp., a Florida-based company that makes the StingRay and other IMSI catchers used by law enforcement agencies across the country.
The FBI letter, which was not classified but was designated as "law enforcement sensitive," told the Tacoma police chief that the Federal Communications Commission authorizes the sale of such surveillance equipment to state and local police departments on the condition that they first sign an FBI "non-disclosure agreement."
The details of the agreement are redacted from the letter as released; the blacked-out portions stretch across the bulk of a six-page document, which was first published on Monday by MuckRock, a news site that helps journalists, researchers and others submit Freedom of Information Act requests and publishes the results.
It had earlier been reported that the manufacturer of the device, the Harris Corporation, required its customers to sign nondisclosure agreements. But now we discover the feds have one, too - one that's apparently required by the FCC according to the letter Muckrock uncovered, though apparently not in its public rules. The Associated Press had written earlier (June 12) about the feds' attempts to conceal information about stingray use by local police, including a detail that foreshadowed this recent news:
Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies.
A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.
To judge from that account, the NDA requirement stems from an "authorization agreement" with the FCC rather than a formal public rule. (A report from the Daily Caller alleged that the Harris Corporation misled the FCC, claiming the tech would only be used in "emergency situations" as opposed to routine investigations.) But the document discovered by Muckrock is the first we've learned of NDAs between the police and the FBI. It seemed grotesque when it was thought the Harris Corp. was requiring the NDAs. Now we know that the Department of Justice is not just complicit in that deceit but a formal party to the contract. And the FCC, instead of requiring phone companies to fix security vulnerabilities, are licensing private companies to exploit them for profit.
Indeed, it appears federal agencies actively encouraged local law enforcement to lie when they find evidence using the technology, claiming the information came from an informant. Again from the Post:
E-mails collected through a separate Freedom of Information Act request, by the ACLU, showed in June that the U.S. Marshals Service had asked police in Florida to not reveal that they had used IMSI catchers in determining the locations of criminal suspects. Instead, the police were instructed to say that they had learned the whereabouts of suspects using "a confidential source."
Has the US Marshals Service never heard of Brady v. Maryland?
I wonder, given passage of the Michael Morton Act, with its pro-active requirement to disclose inculpatory as well as exculpatory evidence, whether Texas police are following the feds' advice and lying in official documents when they use these devices? One would hope not, but then one would also hope the cops would have better sense than to sign a non-disclosure agreement that contradicts with state open records law. (We know the Fort Worth and Houston PDs own IMSI catchers, and probably DPS: Likely other agencies in Texas own them, too.)
Either way, it's no wonder there hasn't been a wider public outcry about the use of such spy tech without warrants nor public disclosure: The government has gone to tremendous lengths to conceal these activities.
Labels: cell phones, Stingrays, USDOJ
Tom G said...
"Has the US Marshals Service never heard of Brady v. Maryland?" Absolutely positively. The DOJ has simply figured out a way to skirt the subject, by showing the rest of the agencies how to do it. Laws are written to govern the people, not for the govt! An outragous abuse of power by a lawless government.
albeed said...
Gee! One level of government urging, nay demanding, that another level lie to its citizens and the "Justus System". Who would of thunk that!
We're here to protect you! Sure.
Soronel Haetir said...
Unfortunately while incredibly misleading I don't think saying "confidential source" instead of "fake cell phone tower" is exactly a lie (I would say otherwise if the word chosen were "informant" rather than "source", but I imagine the marshals were careful to choose that word for precisely that reason).
On the topic of Brady I don't see how it's material the information leading to the arrest of an already wanted individual. And Brady requires that the information be material before it is subject to disclosure. I would conclude otherwise if the information from the equipment were being used as some sort of proof at trial but as far as I can tell from this story that is not the case.
As I understand general US law the facts leading to an arrest will never undo that arrest so long as there was a valid warrant beforehand. Those facts might give rise to some separate civil claim but they won't act to free the wanted individual and make the police find them again.
@ Soronel, please point to where in the story you gathered that the info was only used to facilitate the arrest rather than as part of the prosecution. I didn't see that at all, though I have by no means followed the specific case beyond this article.
Otherwise, "incredibly misleading" in one's court filings IMO should be enough to trigger a judge's wrath.
If it we were only discussing Brady, I may agree with your assessment. But the question posed in the post (that you rather conveniently ignored) was "given passage of the Michael Morton Act, with its pro-active requirement to disclose inculpatory as well as exculpatory evidence, whether Texas police are following the feds' advice and lying in official documents when they use these devices?" You think "lying" is too strong, but attorneys are also disallowed from intentionally misleading judges and juries, right?
On that score, what say you?
I make the comment based on:
E-mails collected through a separate Freedom of Information Act request, by the ACLU , showed in June that the U.S. Marshals Service had asked police in Florida to not reveal that they had used IMSI catchers in determining the locations of criminal suspects. Instead, the police were instructed to say that they had learned the whereabouts of suspects using "a confidential source."
"Learning the whereabouts of criminal suspects" is classic US Marshals duty (which as I understand focus on executing warrants and transporting those already arrested and not general law enforcement). I would need to see something far more specific before I would believe that this information were actually material, as being a criminal suspect that is already wanted means that there is existing cause to arrest that individual. And that makes me believe the location data is not relevant to proving those existing charges (it might be material to proving some later charge in which case I would tentatively agree that it is subject to disclosure).
Unfortunately I am at the limit for the month with WaPo so can;'t read the full article.
Daniel Hatfield said...
Well, this is news. Definitely another DOJ conspiracy. Justice system? What justice system?
Soronel, locating people is the marshal services' job, you're right. But I wouldn't leap from there to the assumption that ALL agencies ONLY use it for that purpose.
Also, as mentioned, the Michael Morton Act requires greater disclosure than Brady, and judges, not prosecutors, decide what is material.
Perhaps you could explain how you see the nature of information that leads to the arrest of an already wanted individual is in any way material to the case that person is involved in (as I understand disclosure requirements the information has to be relevant to the particular case and not just of general interest to society). The case mentioning the Marshals was in Florida so the heightened Texas disclosure rules wouldn't even come into play, but setting that aside I still have a hard time seeing it being material, though like I said I would conclude otherwise if the equipment were used for investigations and then somehow entered into evidence without disclosing the source (though the parts you published don't read like that is what is happening at all).
The one other concern I possibly see and haven't figured out, does the equipment allow law enforcement to basically perform a wiretap or does it only allow collection of the same type of data (albeit more accurate because of proximity) that can already be obtained through a telco subpoena? If the former, and if done without a warrant then I see huge concerns with the equipment, while if the latter the implications are much less frightening.
How have we allowed our own govt. to become the monster it has?
Alex S. said...
More cheating by polices. How about some good old-fashioned detective work instead?