A few weeks ago, a New York judge ruled that the Erie County Sheriff’s Office had inappropriately denied a freedom of information request from the NYCLU regarding the office’s use of Stingray cell phone trackers. The judge ordered the sheriff to release the documents that had been inappropriately withheld.
Yesterday, the sheriff complied and the documents prove exactly what transparency and civil liberties advocates have been arguing: these devices are often deployed in complete secrecy and with no judicial oversight.
Per the NYCLU press release:
The Sheriff’s Office used Stingrays at least 47 times between May 1, 2010, and October 3, 2014, including to assist other law enforcement departments like the Monroe County Sheriff’s Office. It appears that the office only obtained a court order in only one of those 47 circumstances, in October 2014, and even in that case it was not a warrant but a lower level court order (called a “pen register” order). This contradicts what the sheriff said to a local reporter and undermines what he said to the legislature – that this device is being used subject to “judicial review.”
Further, the federal government is directly complicit in this secrecy, forcing law enforcement agencies to sign non‐disclosure agreements in exchange for use of the devices. The agreements forbid participating law enforcement agencies from disclosing the nature of these devices, even to judges and defense attorneys. The agreement even contains provisions giving the FBI the authority to compel prosecutors to drop criminal cases rather than reveal the Stingray use to the court.
From the non‐disclosure agreement:
In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wirelesss collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence of the prosecutorial process. Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agenices, for inclusion in this agreement.
This is not just idle boilerplate. Although that provision of the agreements has until now been redacted, civil liberties advocates have long assumed its existence based on several instances of serious criminal charges being dropped when scrupulous defense attorneys or judges start inquiring into how police were able to locate suspects. Perhaps more troubling, the conditional nature of that provision implies that police and prosecutors can use information gleaned from these devices unless the judge or opposing counsel asks the right questions to expose the Stingray use. That implication raises a troubling question: how often has evidence from illicit Stingray use been allowed to stand because neither the judge nor the lawyer knew what to look for?
A legitimate justice system requires transparency and accountability. It requires checks and balances and respect for the rule of law. With every revelation about the widespread and unfettered use of cell site simulators by police, it becomes more clear that this program flies in the face of our cherished principles of justice.