Protecting Stingray abuse is important to FBI

Stan Ward

Stan Ward

April 10, 2015

New disclosures have cropped up relating to the use of a secretive surveillance device used by law enforcement agencies called a stingray, raising alarming questions which beg for answers. On the heels of a case last year in Baltimore, where prosecutors dropped charges rather than seek a conviction, a similar situation has occurred recently in New York State.

In each instance, rather than reveal information about the stingray device, authorities ended prosecutions. It is clearly evident that they acted upon the direction of the FBI, which is seeking to avoid disclosing information about the proprietary technology at the behest of its manufacturer, Harris Corporation.

Harris Corporation and the FBI are going to extraordinary lengths to keep stingrays secret, which prompts the question: what is it that they don’t want us to know? And why are municipalities spending hundreds of thousands of dollars of taxpayers’ money for stingrays and then dropping prosecutions? Does this seem like a prudent use of public funds?

A recently published FBI agreement clearly demonstrates the full extent of the agency’s attempt to quash public disclosure of information about stingrays, and underscores the length that it will go to avoid information being made public – including the dropping of criminal cases. The similar language used by jurisdictions to justify dropping cases indicates a coordinated campaign of subterfuge by the FBI going back at least two years.

The latest document (released last week by the New York Civil Liberties Union (NYCLU)) was in response to last month’s victory against the Erie County (NY) Sheriff’s Office (ECSO).

In order to ensure that such wireless collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions , operation and use shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including but no limited to: press releases, in court documents, during judicial hearings, or during public forums or proceedings.’

Mariko Hirose, an NYCLU staff attorney, said she had never before had seen a document like it,

’This seems very broad in scope and undermines public safety and the workings of the criminal justice system.

As a result of the above direction by the FBI, the ECSO summarily conceded a case they were pursuing for prosecution.

The ECSO 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 wireless collection equipment/technology, its associated software, operating manuals and any other related documentation, if using or providing such information would potentially or actually compromise the equipment/ technology.’

In its desire to prevent criminal or terrorist elements from developing and employing countermeasures to the stingray, the government has hamstrung the judicial system in general, and defense attorneys in particular. Interestingly and worrisome, as of this writing the Erie County public defender has refrained from commenting on the issue.

In the era before cell phones, law enforcement agencies would obtain a pen register, and trap and trace order when it wanted to obtain a target’s call metadata from a phone company, which at least provided some judicial interaction. However, using a stingray obviates the need for a judge’s permission, because the device allows them to gather information directly without involving the phone company. As has been reported in this space, police have often lied to judges about using a stingray, saying that the pertinent information was obtained from an informant.

Many judges usually sign off on a pen register application not fully understanding that police are actually asking for permission to use a stingray. Or worse, and often the case, police deliberately mislead the judges by the language used in a request. By the way, the bar for obtaining phone records is very low for law enforcement, as police have only to demonstrate that the information is ‘relevant’.

So, in the aftermath of this victory by the NYCLU, one is left still grappling with broader, more serious questions. Is all the secrecy that surrounds this device only to gain a slight, temporary advantage over criminals, while deceiving the courts? Or is there something else that the FBI is hiding about the stingray’s capabilities?

Is the stingray actually doing more, like maybe inserting a bug of sorts on phones’ for future information gathering*? It is obvious that the furtive way in which the government is going about using the stingray does not install confidence in law enforcement, and only serves to fuel conspiracy theories.

*Editors note: from technical perspective this seems very unlikely.

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