Black Friday

Failure to Properly Disclose Stingray Use May Jeopardize Convictions

Stan Ward

Stan Ward

September 11, 2015

Following closely on the heels of a newly announced policy regarding Stingray devices, a lawsuit has been filed in a city prominent for its early deployment and use. In Baltimore, Maryland, more than 2,000 cases could be overturned, if alleged collusion among police, prosecutors, and the FBI can be substantiated.

The contentious, secretive use of the Stingrays, and more importantly the keeping of judges in the dark about the practice, is coming back to bite local law enforcement, and the federal hand that feeds it- the FBI. If legal challenges are successful in Baltimore, it will undoubtedly unleash a flood of such litigation nationwide.

In case you’re unaware, Stingrays are made by the Harris Corporation, are around the size of a brief-case, and are one of a class of surveillance devices known as “cell-site simulators”, which pretend to be cellphone towers in order to extract metadata, location information, and in some cases content from phones that connect to it.

The first case to be possibly overturned was instigated by the defense attorney, Josh Insley, on behalf of Shemar Taylor, who was convicted of serious felonies in a trial his defense team claims was abetted by the failure of the prosecution to present the fact that the mobile cellphone- tower simulator played a part in his apprehension and conviction.

In the lead-up to the trial, the prosecutor maintained that a Stingray was not used, but a later investigation refuted this fact. Prosecutors are duty-bound to present such evidence in the discovery portion of legal proceedings. The fact that they would not is troublesome, and leads to speculation that there may be something worrying to law enforcement and prosecutors that they don’t want to see the light of day.

Over the past year, we have written numerous articles detailing not only Stingray abuses, but law enforcement agencies being reluctant to disclose how the technology works when confronted with its use – even going to the extent of throwing cases and letting defendants walk. It is believed that in doing so, they were acting in concert with, and at the direction of, the FBI. In fact, a Guardian investigatory report back in April confirmed the existence of a non-disclosure agreement that the FBI forced upon local police and prosecutors regarding Stingray use. As Insley notes,

“It shocks the conscience that a police commissioner and an elected State’s Attorney would conspire to commit obstruction of justice unless the FBI told them they could disclose.

To support his claim and certify his outrage, he produced proof that an agreement with the FBI and local authorities pertaining to the employment of the Stingray devices in fact existed.

This singular acknowledgement has spurred the Baltimore’s public defender’s department to review more than 2,000 cases in which the police secretly used Stingrays. It is believed that in most cases, the police used the devices with the acquiescence of prosecutors, who then reverse-engineered the case at trial to obscure such use, saying that the defendant’s location was determined from an anonymous tip, confidential source, or other misleading jargon and “inscrutable euphemisms.”

This was clearly a deliberate and willful misrepresentation to the court to conceal the use of extrajudicial clandestine surveillance by the Baltimore City police department… [The State’s Attorney had demonstrated] an intentional wanton disregard of the Rules of Evidence.

The deputy public defender added that the disclosures are “… really frightening,” and that it is “too early to tell” how many cases might be affected. But, if the lid blows off this (as well it might!) then the repercussions will be nationwide, with the ripples spreading far and wide across the land, much to the glee of privacy-lovers everywhere…

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