This requires a little backstory, as it has been strange and winding. Stingray devices act as a fake cellphone tower, sending out a signal to any cell phone in range, causing the phone to connect to it instead of real cellphone towers. These devices can be used to record data that the phones transmits about numbers called and received and location information. They don’t target just one user or device: they “target” anything in range, real dragnet surveillance.In 2008, a woman was raped, and the Tallahassee police used Stingray equipment to locate the rapist. At the trial, officer Christopher Corbitt agreed to testify as to the operation of the Stingray equipment as long as the transcript of the testimony was sealed. That transcript was very recently unsealed and offers a rare glimpse at the police operations of Stingray equipment.Stingray devices were mounted to police vehicles, a practice that EFF staff attorney Hanni Fakhoury said suggests a much more frequent use of the technology than previously thought. The decision in the case remarked that the department was under a non-disclosure agreement with the manufacturers of the technology and does not apply for search warrants because of this: if they had to apply for search warrants, they would have to detail their use of the Stingray devices in violation of their nondisclosure agreements.
I’m a little amazed that police departments have equipment governed by nondisclosure agreements at all, let alone ones that require police to weigh breaking a nondisclosure agreement against breaking the fourth amendment. I’m astounded that this is offered as a “reasonable” excuse for not getting a warrant. A violation of the fourth is what it is, and while all sorts of tenuous exigencies and other exceptions have been found for whatever reason, there is no way that violating a nondisclosure agreement could possibly be tenable. The bottom of page 3 of the decision alludes briefly to parallel construction – where a legal basis for probable cause is developed alongside a non-legal basis, such as was attempted to be used here. Stingray equipment was used to locate their “target,” then they knocked on the door and attempted to gain access legally. When that failed, they simply came in anyway, illegally. The opinion eventually found that the police had entered illegally and gives a good overview of warrant/reasonableness requirements in the process. It’s the parallel construction that’s the basis for the headline
The case didn’t touch on the legality of the initial methods used to locate the phone, which has been subject to some debate. Even in instances where court approval is obtained (new Tallahassee Police Chief Michael DeLeo says they are obtained in 90% of Stingray operations), there is considerable uncertainty as to the adequacy: the authorizations used are often pen registers and trap-and-trace, which allow for interception of which numbers call and are called by one specific phone number, respectively. The federal Pen Register Statute allows law enforcement to get this authorization on a much lower standard than probable cause – all that is required is telling a court that it would help in their investigations. The idea was that since you are voluntarily releasing the information regarding phone numbers to a third party (the phone company) when dialing, it’s given a lower level of protection. Stingray devices not only gather more information than pen registers/trap-and-trace, they gather it from far more people at once. So court authorization doesn’t mean much, especially given that it’s not clear that the court had any idea it knew what it was authorizing.
This case was just the prelude to this whole debacle, however. This year, the testimony regarding the operation of the Stingray device was unsealed, and on May 19, Michael Barfield, president of the Florida ACLU, emailed a request to the Sarasota Police Department for all records, emails, non-disclosure agreements, etc., that the department ad regarding Stingray, Stingray II, or other cellphone tracking devices. The email pointed out Florida Statute 119.07(h) and (i), requiring retention for 30 days even if the record is not subject to public inspection and that public records must be maintained, respectively. Barfield was told that he could come down to inspect the records, but before he could do that, the US Marshals made the detective in charge of the records a “Special Deputy US Marshal,” and thus he would have to submit his request through federal channels, a FOIA request. It’s unclear how this transferred ownership of the records to the US Marshals, as I don’t think there is a record of this kind of incredible wtf-ness previously. The US Marshals then physically moved the files from Sarasota to Tampa, and those Florida Statutes mandating retention I suppose were superseded upon federal intervention.
The ACLU filed an emergency petition on June 3, asking the state to release the documents to the public, but was denied on June 17, as the state’s Sunshine Law (Florida’s FOIA) didn’t apply to the federal government and the Special Deputy US Marshal. MuckRock, an investigative journalism site, had filed an expedited FOIA request on June 3 seeking any communications between the US Marshals and the Sarasota Police Department, but on June 18 the response was that there were no responsive documents. On June 20, an appeal was filed due to the incredible nature of that response. The office of the president has been encouraging local law enforcement officials to stay quiet about Stingray and other cell phone surveillance programs, which may explain the involvement of the US Marshals, themselves part of the DoJ, part of the executive branch.
So, back to parallel construction. It was hinted at in the case, but 5 newly released 2009 emails from Sarasota show that the police there were encouraged by the US Marshals not to tell judges about the use of Stingray equipment when applying for warrants. Instead of informing judges about the bases for their information, they are encouraged to cite “confidential sources,” which, I suppose, isn’t a lie. It is a terrible misdirection, however. The obvious intent is to have the judges believe that a confidential informant is the source of the information. When more is needed than just a “confidential source,” investigators can use the illegally collected information to find other information which can then be disclosed normally. The justification given is that if the “criminal element” knew of the investigative methods being used it would compromise them, and that it is not necessary for anyone outside of the investigation itself to know about the investigative methods. This, however, ensures that these methods are not brought up at court, not reviewed by a jury or a judge, and perhaps never even brought to the attention of a legislator. These are all of the controls in place to make sure that investigative methods are properly implemented, don’t violate personal or property rights, and aren’t being used by police to harass or terrorize. Sarasota police have used Stingray devices more than 200 times. This information should not be kept from judges or the people.
While We Slept 