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Police keep surveillance tech secret

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If you use a cellphone and live in one of these 20 states, there’s a decent chance police have spied on you using a secretive mass surveillance tool called a stingray. But good luck finding out. Because if there’s one thing we know for sure about these devices, it’s that the federal government is fighting tooth and nail to stop you from ever learning anything about them.

Stingrays (also known as cell-site simulators, IMSI catchers and dirtboxes) are devices that identify and track cellphones en masse by acting like fake cell towers, fooling all nearby phones into connecting to them. Last year documents obtained through the Freedom of Information Act revealed that the Federal Bureau of Investigation is requiring state and local police departments to sign nondisclosure agreements before obtaining the devices. But the details of those secret agreements were always completely redacted.

That is until earlier this week, when the ACLU released new stingray documents, including an agreement between the FBI and police in Erie County, New York. It confirms what privacy advocates have suspected: The federal government is intervening at the state and local level to hide information about stingrays at any cost — even when it means withholding evidence or dropping criminal cases.

The agreement bars the Erie County Sheriff’s Office from making any public statements about stingrays and says it must call the FBI to intervene whenever a public records request or court order compels the county to reveal any information about the technology. The accord even says the department must be willing to drop cases, explicitly directing police to “seek dismissal of the case in lieu of using or providing or allowing others to use or provide any information concerning [stingrays]” at the FBI’s request.

That’s right: The FBI is commanding local cops to ignore court orders and sabotage criminal cases rather than reveal information about stingrays.

Other police departments are apparently under the same mandate. In incredible testimony on Wednesday, a Baltimore police detective admitted in court that the FBI has instructed the city’s police to disobey court orders that seek information about stingrays, which he said the department has used 4,300 times since 2007. In a previous case, Baltimore prosecutors threw out evidence after a judge threatened to hold an officer in contempt for refusing to explain how a stingray was used to catch the defendant. And in Florida, a defendant was let off with six months of probation for armed robbery — an offense normally carrying a minimum sentence of four years — again so that police wouldn’t have to tell the court how they used a stingray in the bust.

These are just a few Kafkaesque examples of the extreme measures police have taken to prevent the public from finding out about stingrays. Last year documents requested by the ACLU of Florida were seized by U.S. marshals at the FBI’s behest just hours before they were scheduled to be released under a court order.

If telling the public how a technology works makes that technology useless, maybe it’s not worth sinking millions of taxpayer dollars into it in the first place.
The underhanded tactics are chilling, given that police rarely seek court approval for using this technology. In Erie County, police obtained a court order (which has a lower standard of proof than a warrant) only once out of the 47 times a stingray was used from May 2010 to October 2014. Even then, cops have knowingly deceived courts about their use of stingrays at the direction of federal agencies, misleadingly calling the device a “confidential source.” This is a widespread tactic known as parallel construction, in which police use secret and legally dubious means to spy on suspects, then create false narratives about how the evidence was obtained.

What could be so important that it excuses withholding evidence, lying to judges and dropping criminal charges?

According to the FBI’s agreement with the Erie County Sheriff’s Office, revealing any information about stingrays would be catastrophic. “Disclosure could result in the FBI’s inability to protect the public from terrorism and other criminal activity,” the bureau claims, “because through public disclosures, this technology has been rendered essentially useless for future investigations.”

First, if using a stingray means letting suspects off the hook to protect its secrets, the technology is already useless. Second, if telling the public how a technology works causes that technology to be “rendered essentially useless,” maybe it’s not something worth sinking millions of taxpayer dollars into in the first place.

It’s not as if we don’t already have a general idea of how these devices work. The Florida-based Harris Corp., which based them on devices it originally produced for the U.S. Navy, sells its trademarked StingRay and its successors, the Hailstorm and StingRay II, for up to $400,000 per unit. Similar equipment can be built for only a few hundred dollars and has been shown off at hacker conferences for years; researchers have even created a way to detect stingrays and similar devices using an app.

Any other countermeasures that might be used against stingrays (for instance, using burner phones or paying with cash) have long been known to criminals and haven’t stopped cops from catching them. Nor has it stopped police from spying on countless innocent bystanders inevitably caught in the devices’ dragnets.

Allowing cops to flout the rule of law to conceal technology that has such dire privacy implications only undermines the police’s credibility. The public deserves to know which police departments and agencies have stingrays, when and how often they’re used and why.

Hopefully, more judges will begin realizing that the government’s desperate efforts to hide stingrays are about shielding them from public ire, not from criminals and terrorists. In stubbornly guarding this information, the only thing police are protecting stingrays from is the legal and constitutional scrutiny they have long and urgently needed.

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