Police Tell Courts Non-Disclosure Agreement Prevents Them From Getting A Warrant For Cell Phone Tower Spoofers

from the NDAs, the new 4th amendment workaround dept

As we’ve noted before, several law enforcement agencies, including the FBI, have been deploying “stingray” devices (devices that mimic cell towers) for years, using them to collect data on thousands of cell phone owners. Almost every single “stingray” device has been put into use without informing the public. That opacity is standard operating procedure for everyone, from local law enforcement all the way up through the DOJ.

This opacity is to be expected. The public is rarely notified in advance of deployment. It’s only after the use is discovered that an effort is made (and usually a weak one at that) to address the public’s concerns. Officials tend to claim the “danger” presented by being transparent far outweighs whatever collateral damage to privacy or civil liberties the public suffers.

That these devices are routinely used without a warrant is also, sadly, unsurprising. As far as the law has been interpreted, US citizens have very little expectation of privacy in the so-called “business records” generated by their cell phones’ connection to each and every cell tower. This is why “cell tower dumps” have become a go-to tool for warrantless data hauls.

So far, so routine. But as Kim Zetter at Wired reports, there’s yet another reason law enforcement agencies aren’t seeking warrants before deploying stingray devices.

Police in Florida have offered a startling excuse for having used a controversial “stingray” cell phone tracking gadget 200 times without ever telling a judge: the device’s manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts.

The shocking revelation, uncovered by the American Civil Liberties Union, came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim’s cell phone. Using the stingray — which simulates a cell phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment.

During proceedings in the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.

This is a new dodge. Law enforcement has usually avoided obtaining warrants by using the third party doctrine and, in most states, this has been deemed perfectly legal. However, it seems unlikely that judges will be sympathetic to claims that a private contractor’s NDA supersedes stipulations meant to keep law enforcement in adherence with the Fourth Amendment.

This surprising admission by the Tallahassee Police Dept. is part of a sealed court record. This was inadvertently exposed during the appeal. Courtroom video shows just how irritated two of the presiding judges were at the PD’s violation of warranty requirements.

When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.

“No, no, no, no, no,” he said. “I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology.”

His fellow judge then interjected loudly, “Two-hundred times they have not.”

This appears at about the 18:00 mark on the video of the oral arguments. The government attorney’s explanation (beginning around 16 minutes in) is also informative and entertaining as she dances around the illegality of the entire situation, which also included a warrantless search of an apartment. Apparently, the government’s argument is that it intended to get a warrant for the apartment search, which is supposedly as legitimate as actually obtaining one. (The questions about consent for the search are far from settled, something a Tallahassee police officer made even cloudier by blocking the door from being shut with his foot.)

So, two hundred times the Tallahassee police department deployed a stingray device and never bothered getting a warrant (and that’s just since 2010). When finally pressed on the issue, it deferred to the manufacturer’s NDA. The manufacturer (Harris) has itself deferred any questions to the police department.

Unfortunately, this case will not be dealing with the warranty requirements for stingray devices, nor the PD’s insistence that a manufacturer’s NDA should allow it to skirt any potential privacy issues and withhold information in court cases.

This should put the spotlight on manufacturers of “stingray” devices. If they’re using NDAs to keep the public uninformed and prevent the discussion of usage even in court, that’s a huge problem. If these agreements are common across manufacturers, then there can be no doubt that law enforcement agencies across the nation have falsified reports and generated alternate narratives to cover up the origins of obtained evidence.

Filed Under: , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Police Tell Courts Non-Disclosure Agreement Prevents Them From Getting A Warrant For Cell Phone Tower Spoofers”

Subscribe: RSS Leave a comment

That these devices are routinely used without a warrant is also, sadly, unsurprising. As far as the law has been interpreted, US citizens have very little expectation of privacy in the so-called “business records” generated by their cell phones’ connection to each and every cell tower. This is why “cell tower dumps” have become a go-to tool for warrantless data hauls.

Hang on a minute Mike! That defense shouldn’t work. Let’s say it does work for carriers, because they are supposed to give you this service and handle the data, so it’s like you agreed to give them the data this way.

But that doesn’t apply to authorities doing this, and “intercepting” your data. It sounds a whole lot like hacking, and we’re not going to say that hacking of data doesn’t matter now, because of the 3rd party doctrine, are we?

So if they are using the 3rd party doctrine as a defense for them intercepting data like this, then it’s total BS.



Maybe they’re using something more like, you’re using radio waves to broadcast a signal, and so it’s fair game just like any TV station is fair game.

Or maybe they’ll just claim that you INTENDED your data to go to a third party, and they COULD have obtained it from them, so they’re just cutting out the middleman. Sounds about like something they’d try to argue in court.

John Fendersonsays:

Re: Re:

“Maybe they’re using something more like, you’re using radio waves to broadcast a signal, and so it’s fair game just like any TV station is fair game.”

They might be able to argue this if all they were doing was passively listening to radio signals. However, these systems are interacting with cell phones in a fraudulent way.

This is unambiguously hacking. The government would agree 100% if it were a private citizen doing it.


So, instead of pleading the 5th, do we just plead the NDA these days?

Also, regarding: “The public is rarely notified in advance of deployment.” Of course they’re not going to tell the public in advance; it would defeat the purpose. It would be like an undercover officer making a public statement detailing the dates of when he’ll be undercover.


NDA, the ultimate amendment

Of course , I could never remember the constitution where it says private corporation non disclosure agreements always trump privacy and other civil liberties.

And you think public servants aren’t that smart? LOL, well, here you go, they are a very creative bunch: they always come up with brilliant justifications for their actions. If only I could come up with brilliant rhetoric.


Re: What's next, legal contract murder?

Indeed, it’s business law 101, a part of a contract, or even the whole thing, is invalid if it tells someone to break the law.

The only way a contract involving illegal things can be upheld is if the person breaking the law didn’t know they were breaking the law.

Such as for example, being given a bunch of heavy of boxes to transport from one location to another, only to realize later that the boxes were full of illegal drugs. In that case while the person who hired you to transfer the illegal stuff broke the law, they can’t refuse to pay you because the contract involved you breaking the law. But if you knew full well you were transferring illegal goods, then they could get away without paying you, though if either of you brought it to court in that case you’d both be arrested for knowingly breaking the law.

And, I highly doubt that the police didn’t know that all those uses of stingrays without a warrant was illegal.

Daniel Joseph Calvanesesays:

I don’t even know why we are having these discussions. These judges were cut out of the loop and are pretending to be pissed. Does it matter? All of our government agencies will do whatever, whenever, as long as it is possible. For example, the only way our communications will be private is if we make them private using the laws of physics. Assuming anything less is faking reality.

Then, how is it any different when we assume that the courts will act with respect to moral sense or constitutional law? I normally stop at the first contradiction, but we have a bazillion of those already. It is at this point that when the courts disregard their constitutional oaths, it is no longer the courts who are lying, but rather those who continue to believe them or pretend that they have any credibility whatsoever.

Can’t we just call them out for the clowns they are and consistently stick with it?

Coyne Tibbetssays:

No warrant, no admissibility

If I were on the court, I would explain it this way: We understand you can’t get a warrant because of the NDA. That’s not a problem. Your problem is that no evidence taken via the stingray is admissible in this state without a warrant.

So you go ahead and deploy your stingray, but you just as well burn the tapes after you record them, because they are not entering a courtroom in this state.


Re: No warrant, no admissibility

Excepting that would not prosecute the law enforcement’s illegal actions.
I am getting so tired of people just expecting that law enforcement has a legal right to hack into any system they want. You see it on so many crime dramas that it appears to be legitimate, and it’s not. And since TV is where most morons get their education the public outrage over abused privacy rights never happens.


Imagine that the courts accept this so-called excuse. And imagine that you are a manufacturer of surveillance equipment, in a meeting with police buyers the next day.

“So, if we buy this system, are you going to make us sign an NDA that forbids us to tell the courts about how we use it?”

How will you reply? Take a minute, think it over.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Older Stuff
13:40 It's Great That Winnie The Pooh Is In The Public Domain; But He Should Have Been Free In 1982 (Or Earlier) (35)
12:06 Norton 360 Now Comes With Crypto Mining Capabilities And Sketchy Removal Process (28)
10:45 Chinese Government Dragnet Now Folding In American Social Media Platforms To Silence Dissent (14)
10:40 Daily Deal: The 2022 Ultimate Cybersecurity Analyst Preparation Bundle (0)
09:29 A Fight Between Facebook And The British Medical Journal Highlights The Difficulty Of Moderating 'Medical Misinformation' (9)
06:29 Court Ruling Paves The Way For Better, More Reliable Wi-Fi (4)
20:12 Eighth Circuit (Again) Says There's Nothing Wrong With Detaining Innocent Minors At Gunpoint (15)
15:48 China's Regulatory War On Its Gaming Industry Racks Up 14k Casualties (10)
13:31 Chinese Government Fines Local Car Dealerships For Surveilling While Not Being The Government (5)
12:08 Eric Clapton Pretends To Regret The Decision To Sue Random German Woman Who Listed A Bootleg Of One Of His CDs On Ebay (29)
10:44 ICE Is So Toxic That The DHS's Investigative Wing Is Asking To Be Completely Separated From It (29)
10:39 Daily Deal: The 2022 Complete Raspberry Pi And Arduino Developer Bundle (0)
09:31 Google Blocked An Article About Police From The Intercept... Because The Title Included A Phrase That Was Also A Movie Title (24)
06:22 Wireless Carriers Balk At FAA Demand For 5G Deployment Delays Amid Shaky Safety Concerns (16)
19:53 Tenth Circuit Denies Qualified Immunity To Social Worker Who Fabricated A Mother's Confession Of Child Abuse (35)
15:39 Sci-Hub's Creator Thinks Academic Publishers, Not Her Site, Are The Real Threat To Science, And Says: 'Any Law Against Knowledge Is Fundamentally Unjust' (34)
13:32 Federal Court Tells Proud Boys Defendants That Raiding The Capitol Building Isn't Covered By The First Amendment (25)
12:14 US Courts Realizing They Have A Judge Alan Albright Sized Problem In Waco (17)
10:44 Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps (16)
10:39 Daily Deal: The Ultimate Microsoft Excel Training Bundle (0)
09:20 NY Senator Proposes Ridiculously Unconstitutional Social Media Law That Is The Mirror Opposite Of Equally Unconstitutional Laws In Florida & Texas (25)
06:12 Telecom Monopolies Are Exploiting Crappy U.S. Broadband Maps To Block Community Broadband Grant Requests (7)
12:00 Funniest/Most Insightful Comments Of 2021 At Techdirt (17)
10:00 Gaming Like It's 1926: Join The Fourth Annual Public Domain Game Jam (6)
09:00 New Year's Message: The Arc Of The Moral Universe Is A Twisty Path (33)
19:39 DHS, ICE Begin Body Camera Pilot Program With Surprisingly Good Policies In Place (7)
15:29 Remembering Techdirt Contributors Sherwin And Elliot (1)
13:32 DC Metro PD's Powerful Review Panel Keeps Giving Bad Cops Their Jobs Back (6)
12:11 Missouri Governor Still Expects Journalists To Be Prosecuted For Showing How His Admin Leaked Teacher Social Security Numbers (39)
10:48 Oversight Board Overturning Instagram Takedown Of Ayahuasca Post Demonstrates The Impossibility Of Content Moderation (10)
More arrow
This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it