Cops Say NDA Kept Them from Notifying Courts About Cell Phone Tracking Gadget

schwit1 writes "Police in Florida have offered a startling excuse for having used a controversial 'stingray' cell phone tracking gadget 200 times without ever telling a judge: the device's manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts. The shocking revelation, uncovered by the American Civil Liberties Union, came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim's cell phone. Using the stingray — which simulates a cell phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment."

Comments

Abjectly false argument

[Anonymous Coward]

Confidentiality agreements do not supersede the law, court orders, the constitution, or anything else. Private contractual agreements always take a back seat to binding Law and Court Orders.

The police department in question probably asked for an NDA to give them rationalization for breaking the law.

Re:Abjectly false argument

[Immerman]

Indeed. If a contract requires you break the law, you are legally obligated to refuse to sign. Signing with the intent to obey the law would be fraud, and signing with the intent to break the law would be conspiracy to commit a crime.

Re:Abjectly false argument

[msauve]

Additionally, using one of those boxes would require court approval. Perhaps not for a traditional search warrant, but certainly to allow the police, who are not licensees of the radio frequencies involved, to operate these intentional transmitters. And that probably means federal court approval.

Re:Abjectly false argument

[Anonymous Coward]

If a contract requires you break the law, you are legally obligated to refuse to sign

Not really. If contract is in violation of municipal, state, or federal laws, either in whole or in part, the contract is unenforcable. E.g. if your contract states you must smoke weed while performing some duty, it is illegal to smoke weed and so the contract would not hold up in court. However, most contracts have a provision which would only mark the unenforcable section invalid but due to seperation of parts the rest can be considered valid E.g. if your contract states you must not drive between certain hours and in another section states you must smoke weed, the provision would mean not smoking weed won't violate your contract but driving outside of the hours would.

I always look for contracts that have illegal provisions and make sure I sign the document. Then I can get out of the contract without worry.

Re:Abjectly false argument

[Aighearach]

False. Illegal portions of the contract are not enforceable, and you simply are NOT required to do those parts. And if you knew they were not enforceable, then there is no conspiracy. This happens frequently.

To have a conspiracy you have to have some action taken in furtherance of the crime. Signing the contract and then also taking a step to further the illegal actions, then the contract proves intent. But only once they already have you in those other details.

Re:Abjectly false argument

[Jane Q. Public]

"And if you knew they were not enforceable, then there is no conspiracy. This happens frequently.

But the police department is claiming they are enforceable. So by this logic, there is conspiracy, since they reasonably must have known it was not so. Not conspiracy with the other party, to be sure, but conspiracy to break the law.

To have a conspiracy you have to have some action taken in furtherance of the crime."

You mean like illegally tapping telephones then giving obviously bogus justifications to the court?

Re:Abjectly false argument

[causality]

You mean like illegally tapping telephones then giving obviously bogus justifications to the court?

Don't worry. No matter how many cases like this we know about, the next time you are in a courtroom and it's your word against the police officer's, you will lose. Every time.

So you see, they have everything under control.

Re:Abjectly false argument

[Immerman]

Well, intent to commit conspiracy to commit a crime at least.

Re:Abjectly false argument

[Obfuscant]

Additionally, using one of those boxes would require court approval. Perhaps not for a traditional search warrant, but certainly to allow the police, who are not licensees of the radio frequencies involved, to operate these intentional transmitters. And that probably means federal court approval.

No. Federal courts do not issue FCC licenses for radio use, the FCC does. Licensing the radios would not be subject to a warrant request. Courts, federal or local, don't have the technical expertise to issue radio licenses, nor do they have statutory authority.

It appears that running a microcell is no longer a huge issue with respect to licenses. This company will sell you a complete cell system in a box, needing only an IP connection. How they deal with licensing is not apparent from their website.

On the issue of using the "controversial device" to track the criminal in this case, I'm not so ready to jump on the "police broke the law" bandwagon. If someone steals my LoJack equipped car (or OnStar) the police do not need a warrant to get location information from either source. The criminal has no reasonable expectation of privacy related to the location of MY CAR after he's stolen it. Why would a criminal who steals a cell phone, which by it's very nature is inherently trackable, have such an expectation for a phone he's stolen? This is not a case of "locate Frank Smith so we can track his whereabouts whenever we want to", it's a case of "find the location of stolen property so we can recover it for the rightful owner." If they happen to find that stolen property in the possession of a criminal and can arrest him at the same time, that's a plus.

Re:Abjectly false argument

[AdamThor]

"On the issue of using the "controversial device" to track the criminal in this case, I'm not so ready to jump on the "police broke the law" bandwagon."

So I don't know about actually using the device, I see your logic here. But isn't there a requirement that evidence be disclosed to the accused? I think that's the issue here.

Let us strive to be correct in our outrage...

Re:Abjectly false argument

[AK Marc]

Conspiracy requires two people. You can write the "illegal" contracts all you want, but until you ask someone else to participate, it isn't a conspiracy.

Re:Abjectly false argument

[Obfuscant]

So I don't know about actually using the device, I see your logic here. But isn't there a requirement that evidence be disclosed to the accused? I think that's the issue here.

I think the issue was the actual act of sticking a foot in the door and how the consent was obtained to search, not anything to do with how the stolen device was tracked. At least, that's what the court seems to be interested in.

I read the Wired article. The "stingray" doesn't belong to the police department, it was on loan, so the licensing issue attaches to the company (Hughes), which almost certainly has such a license. They make radios. They'll have all kinds of licenses. And Wired doesn't even know for sure what the device was, they're only guessing, but the NDA points to a loan and not a purchase.

Let us strive to be correct in our outrage...

Agree 1000%.

Re:Abjectly false argument

[JoeMerchant]

Naw man, come here, sign this agreement.

First thing it says is that you will never tell anybody about the existence of this agreement, no way, no how, no foolin'.

Next we get to the good stuff where you and I do all kinds of illegal things, but, since we're bound by this agreement, we can never tell anybody about it, not even under oath in a court of law.

Ya see: airtight, uptight, and outta sight.

Strangely enough, I had a former employer ask me to sign my rights to sue them away under a "secrecy bound" agreement like that - it didn't explicitly say anything illegal, I think - actually, I don't know - I deferred signing it until I found adequate counsel, and so far the only counsel I have found to look at it can't stop laughing long enough to say anything coherent.

Sorry, I can't be compelled to testify

[grahamsaa]

Sorry Judge, I can't be compelled to testify against my accomplice -- we signed a non-disclosure agreement.

Re:Sorry, I can't be compelled to testify

[gargleblast]

Give the mod a break. There is no option that says "-1 giggling idiot".

WTF????

[gstoddart]

Police in Florida have offered a startling excuse for having used a controversial 'stingray' cell phone tracking gadget 200 times without ever telling a judge: the device's manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts

I'm sorry, but what?

You broke the law because if you'd told the courts you'd be breaking an NDA with the company?

How the hell can a police force enter into a contract which expressly requires them to break the law?? What genius lawyer signed off on that one?

Oh, sorry your honor, we couldn't tell you we were violating the law because we signed a contract?

That's ridiculous.

Re:WTF????

[sjames]

On one side, they had an NDA prevention any disclosures about the device or it's use. On the other, if they used it they were obligated to tell the courts about it.

The legal solution is simple and obvious: don't use the damned thing. It's the only way to obey the law and avoid breech of contract at the same time.

In a situation where you actually cannot obey the law and a contract at the same time, the contract term is null and void. No legal contract can require a violation of the law.

Re:WTF????

[ganjadude]

of course not, but intercepting all other people in the areas communications is

Re:WTF????

[Aighearach]

More likely, they simply lied and made up an excuse where they look stupid, to protect themselves against looking criminal.

Most likely the NDA requires that they ask the court to seal documents, if it mentions the courts at all; most likely it was to prevent them from telling the media, or anybody else.

Re:WTF????

[Solandri]

You broke the law because if you'd told the courts you'd be breaking an NDA with the company?

They didn't break the law. TFS is written in a way that makes the reader presuppose the use of these devices is illegal without a warrant. From TFA:

The government has long asserted that it doesn't need to obtain a probable-cause warrant to use the devices because they don't collect the content of phone calls and text messages but rather operate like pen-registers and trap-and-traces, collecting the equivalent of header information.

They did not want to obtain a search warrant to enter the apartment âoebecause they did not want to reveal information [to a judge] about the technology they used to track the cell phone signal, the appellate judges note.

"[Wh]en police use invasive surveillance equipment to surreptitiously sweep up information about the locations and communications of large numbers of people, court oversight and public debate are essential,â the [ACLU] noted in its post.

So the current state of affairs is that there is no law (yet) concerning use of these devices, and some in the government are arguing that no law is needed. There being no law, law enforcement did not want to rock the boat by revealing the devices to the courts so that there might be a new law made (either through legislation or court precedent). The ACLU is arguing that there should be a law prohibiting their use without a warrant.

TFS is written as if the ACLU stance is the current state of affairs, and law enforcement sought to work around it. In fact it's the other way around. Use of these devices is currently legal, and law enforcement sought to keep it that way by not revealing them to the courts so that no ruling on their use would be made. The ACLU is trying to argue for a law requiring a warrant to use these devices.

Re:WTF????

[mrchaotica]

Yes, if you don't have a warrant. And the police in this case indeed did not have one, since to get one they'd have to tell the judge about the device.

Re:WTF????

[xevioso]

Why is it that posts which actually shed some light on what is actually happening in the situation are always at the bottom of a thread? This appears to be the sad state of affairs on /. Seriously, even if I disagree with someone, I always just scroll to the bottom of a thread to get something even remotely insightful about something.

Re:WTF????

[Jaysyn]

Using illegally gathered location data (for the stolen phone as well as the other $LARGENUMBER people in the area) & then failing to get a warrant to enter the premises after being refused entrance by the suspect's girlfriend is where they fucked up. All evidence past that point is not admissible. Fruit of a poison tree & all that.

Because the police & DA couldn't follow the simple rules that they are supposed to, a thief & rapist is going to walk. We should be livid & LEOs should be getting fired because of this.

Re:WTF????

[anagama]

Actually there is a law. The highest law. The 4th Amendment forbids general searches, which is the only thing this device enables.

Secondly, they want to apply the third party doctrine, specifically, if you share info with a phone company they can just hoover it up. But none of the people whose cell phones were affected made an agreement to share information with the cops directly -- the cops in this situation are not a third party, they're "the man" in the middle.

Re:WTF????

[vux984]

It takes time for someone to actually read the article.

  The first responses are usually based on the headline (if we're lucky), the next few made it through at least part of the summary. Some if may be insightful, some not...

But its not until someone's actually read the article that any thing salient to the content of the article can get posted.

Re:WTF????

[slew]

That is like saying if I invent a new beam energy weapon that can cook your eyeballs into a goo and fry your brain until you die, it isn't illegal to use it as there is no law against using newly invented beam weapons to fry people. That is just plain absurd! It's illegal to tap people's phones without a warrant. Just because you are using a new piece of tech to do it does not make it legal!

No, this is like saying if you invent a new beam energy weapon that can cook your eyeballs into a goo and fry your brain until you die, it isn't yet illegal to use it to do thing that don't break current laws. Since killing people is currently against the law, you couldn't do that. Threatening people with bodily harm is also against the law.

However, using it in a pulse mode to reshape your cornea to improve vision is probably okay unless they pass a law against it even though it *could* cook your eyeballs and fry your brain until you die if it wasn't pulsed for a short enough duration.

Re:WTF????

[slew]

No, the police never claimed if what they were doing was illegal or legal. THEY DIDN'T TELL THE COURT ABOUT IT IN THE FIRST PLACE.

This is an example of how the government generally claims this is legal...

The government has long asserted that it doesn’t need to obtain a probable-cause warrant to use the devices because they don’t collect the content of phone calls and text messages but rather operate like pen-registers and trap-and-traces, collecting the equivalent of header information.

A US Supreme court decision effectively decided that absent a change in statute, pen-registers/trap-and-traces do *not* constitute a search or even a reasonable expectation of privacy (as opposed to wire-taps which listen in on the actual communication). This assertion has been used in the past and continues to be the basis of arguments that it is not unconstitutional. As to the legality, that is up to congress, but to date, it isn't illegal, because there are no laws against what they are doing.

Surprisingly lazy

[schneidafunk]

This is exactly a case where I am OK with tracking down the criminal through the cell phone. The warrant would absolutely have been granted if they bothered to ask for it.

FTA:
According to the appellate court judges, after a young woman reported on September 13, 2008 that she had been raped and that her purse, containing a cell phone, had been stolen, police tracked the location of her phone about 24 hours later to the apartment of Thomas’ girlfriend.

“The investigators settled on a specific apartment ‘shortly after midnight’ or ‘approximately 1:00 to 2:00 a.m.’ on September 14, 2008,” the court wrote. “For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.”

Re:Surprisingly lazy

[gstoddart]

This is exactly a case where I am OK with tracking down the criminal through the cell phone. The warrant would absolutely have been granted if they bothered to ask for it.

Except that they didn't get a warrant, subsequently used the device in a bunch of other cases (again, without warrants) is mind boggling.

An NDA with a vendor is not a free pass to violate the law, and if the police are stupid enough to believe they can do anything they want because they signed an NDA, they're horribly mistaken.

A vendor of such things cannot compel you to violate the law. And they should have known this -- surely somewhere they have legal counsel who can say "well, that doesn't mean you can do this any time you like".

This is either stupidity and incompetence, or deciding you now have a loophole to do an end run around the law whenever you choose.

That's like telling your mom that when you bought your brother's bicycle for $0.10 her right to punish you was covered by an NDA. It simply doesn't work that way. She will still punish you, and the courts need to really do the same here.

Re:Surprisingly lazy

[number17]

In this case, couldn't the police have asked the owner of the phone (the victim) for permission to track the device, negating the need for a warrant?

Re:Surprisingly lazy

[memojuez]

If you RTFA, you will see that the Police forced their way into the apartment after the suspect's girlfriend would not let them in with-out a warrant. the police did not get a search warrant to enter the residence to ... “because they did not want to reveal information [to a judge] about the technology they used to track the cell phone signal,” the appellate judges note.

Also from TFA: Authorities opted not to get a warrant either for the use of the Stingray or the search of the apartment, simply because they didn’t want to tell the judge what they were using to locate the suspect...

This is a two-fold disregard of the constitution.

Re:Surprisingly lazy

[Jaysyn]

Stingrays *do not track single phones*.

They slurp up all the cell phone connections in a rather large area. It's like tapping every phone in a neighborhood to find one suspected grow operation.

Every single connection that a Stingray made would have to have a warrant attached to it. See Commonwealth v. Augustine.

And they have apparently been doing this for a while. I have a feeling TPD is going to be responsible for allowing a lot of criminals in the Tallahassee area to have their charges / convictions thrown out.

Re:Surprisingly lazy

[CrimsonAvenger]

Lets imagine that I report a painting stolen from my house. Do the police need a warrant to make enquires about the possible location of my painting?

No.

Do the police need a warrant to search a house/apartment if they're absolutely sure stolen property is inside?

Yes, absolutely.

Well...

[Anonymous Coward]

Assuming the NDA can be held to apply in this case (which in fact it would not) -

Not being able to tell the court obviously precludes being able to ask them for authorization to use the device. This does NOT mean they can use it without authorization from a court, but in fact the exact opposite: the NDA would make it completely unusable, as they can't get that required authorization.

Just wow.

NDA Law?

[CanHasDIY]

Since when does a contract, any contract, supersede the legal system?

Oh, right - they don't, and this bullshit excuse for illegal use of surveillance equipment is exactly the out this scumbag rapist needs to get acquitted.

Nice work, morons.

Not part of the case? Hmmm

[TheCarp]

âoeFor purposes of decision, however, we assume the police acted lawfully up to the point that they forcibly entered the apartment,â they wrote in their November opinion. âoeIt is not clear that there was ever a ruling on the legality of the cell phone tracking methods used below.â

So.... this particular question is excluded from this particular review, and that part of the investigation "we assume the police acted lawfully".

Am I correct in reading that this means; should the appeal fail; that another appeal claiming that the actions leading up to the search were not legal should be expected? Seems that such an assumption would mean there is another question which could potentially come into play in another review.

Seems like the police really screwed the pooch on this one. From a civil rights POV it is pretty clear they should toss the evidence and let this rapist go. Its sad when rapists get to go free on technicalities but, we can't forget,.....this is the Police's fault.

They risked letting a rapist go free so they could hide their techniques; and now....no only did they fail at hiding their techniques, but also failed to protect the community.

Re:Not part of the case? Hmmm

[Immerman]

Indeed. They say that bad cases make bad law, and I'd say this one qualifies in spades. Either a rapist escapes justice, or we get some really horrible precedent established with regards to government surveillance. Then again maybe not - most rapists don't conveniently get caught with their hand in the cookie jar, hopefully the rest of the evidence is convincing enough that the guy rots anyway, even if the arrest itself was blatantly illegal.

I really wish we'd at see some cases of individual police officers convicted for blatant disregard of the constitution - not the police department, as is usually the case, with penalties being passed back to the tax payers, I want to see the individual officers responsible doing hard time. I can see granting a little leeway for conventional law - there's way too many of those for any person to keep track of what is and is not illegal, but the constitution is the supreme law of the land, short enough to read completely on your lunch break, and mostly written in clear and concise language. There's no fucking excuse for those whom we grant the sacred trust of enforcing the law to *ever* violate the Constitution.

Re:The example

[ganjadude]

you must not know how these devices work. They act as a cell tower collecting info from ALL phones in the area, the other people in the area did not give them permission to intercept their calls

Re:Purgery? Contempt of court?

[K. S. Kyosuke]

I've heard that purgery is a federal fellatio in the US.

The Real Culprits

[Tokolosh]

You can blame the cops, manufacturers, criminals all you want, but the root cause of these shenanigans is that the courts are allowing it to happen.

When we have arrived at the point where everyone shrugs their shoulders, and says "Slap on the wrist, at most", then we find ourselves in a sad situation.

The third branch of government is asleep at the wheel, or holding its ankles, depending on your choice of metaphor. But the cue from SCOTUS is, do what you want. They have abdicated their responsibility as a bulwark against the inevitable excesses of the executive and legislative branches.

Time for some real consequences for contempt of Constitution and sworn oath to uphold same.

So if I'm reading this right

[gman003]

The company that wrote the NDA should get charged with conspiracy to commit perjury, right? Maybe that's not the exact legal term, but it definitely ought to be illegal to write a contract requiring one party to commit a crime.

Giving credit where credit is due...

[mschaffer]

One can assume ONE of the following is true about the police department:
1. They are completely ignorant of the laws and the Constitution that they have sworn to uphold
2. They conspired to withhold information from the courts.

Either way, I believe that credit should be given where credit is due.

Re:Giving credit where credit is due...

[the_fat_kid]

Ignorance might be the excuse they try but just signing the NDA is conspiracy.
and the last time I checked ignorance of the law is still not a valid excuse.
it sounds like racketeering on the part of the manufacturer.
and it SHOULD result in the release of what sounds like a sexual predator.
And isn't tricking every cell phone in range a DMCA violation?

Law Enforcement Depricated

[sycodon]

Seems to me that Law Enforcement Officers are increasingly the product of poor training and over zealous attitudes that can be summarized a "we are better than you and more important that you".

Beating a Schizophrenic homeless man to death.
Brutalizing a deaf man who can't respond to questions.
Shooting unarmed people because they "thought" they had a gun.
Simply saying and doing stupid things (you have no right to film, open carry, be "here" as opposed to 10 feet over "there".)
Erasing dash cam tapes of just turning off video devices.
Committing perjury.

Tracking with a Stingray?

[PPH]

I don't think so. Like the summary says: It tricks a cell phone into thinking that it is the closest tower. So, to set up an intercept, you already have to know where the subject is. And get in close. The Stingray (and other femtocell hacks) are used to intercept the content of calls and texts.

Cops not able to reveal their tracking capabilities? <cough>Bullshit</cough> Get a scanner, listen to the local police investigations unit tracking someone. They know where a cell phone is and aren't shy about babbling about pings off towers, data feeds from the telecom and the precision with which they can locate a subject. If a judge really didn't want to be lied to, they call the cops out on their crap. Judges are colluding with the cops to keep the Stingray's actual function out of the public record.

Re:The incentives are against rights

[PlusFiveTroll]

That's why many suggest the plea bargain should be abolished.