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

Legal Issues

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: fourth amendment, nda, police, stingray, surveillance