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

Posted by samzenpus on from the I-can't-say dept.

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."

23 of 235 comments (clear)

  1. Abjectly false argument by Anonymous Coward · · Score: 5, Insightful

    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.

    1. Re:Abjectly false argument by Immerman · · Score: 5, Interesting

      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.

      --
      --- Most topics have many sides worth arguing, allow me to take one opposite you.
    2. Re:Abjectly false argument by msauve · · Score: 5, Interesting

      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.

      --
      "National Security is the chief cause of national insecurity." - Celine's First Law
    3. Re:Abjectly false argument by Anonymous Coward · · Score: 5, Informative

      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.

    4. Re:Abjectly false argument by Aighearach · · Score: 5, Interesting

      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.

    5. Re:Abjectly false argument by Jane+Q.+Public · · Score: 5, Interesting

      "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?

    6. Re:Abjectly false argument by causality · · Score: 5, Informative

      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.

      --
      It is a miracle that curiosity survives formal education. - Einstein
    7. Re:Abjectly false argument by Obfuscant · · Score: 5, Interesting

      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.

  2. Sorry, I can't be compelled to testify by grahamsaa · · Score: 5, Funny

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

    --
    Facts have a liberal bias.
  3. WTF???? by gstoddart · · Score: 5, Interesting

    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.

    --
    Lost at C:>. Found at C.
    1. Re:WTF???? by sjames · · Score: 4, Insightful

      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.

    2. Re:WTF???? by Aighearach · · Score: 4, Insightful

      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.

    3. Re:WTF???? by Solandri · · Score: 5, Informative

      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.

    4. Re:WTF???? by mrchaotica · · Score: 4, Informative

      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.

      --

      "[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

    5. Re:WTF???? by Jaysyn · · Score: 4, Insightful

      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.

      --
      There is a war going on for your mind.
    6. Re:WTF???? by anagama · · Score: 4, Insightful

      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.

      --
      What changed under Obama? Nothing Good
    7. Re:WTF???? by vux984 · · Score: 4, Insightful

      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.

  4. Surprisingly lazy by schneidafunk · · Score: 4, Interesting

    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.”

    --
    Some people die at 25 and aren't buried until 75. -Benjamin Franklin
    1. Re:Surprisingly lazy by gstoddart · · Score: 4, Interesting

      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.

      --
      Lost at C:>. Found at C.
    2. Re:Surprisingly lazy by memojuez · · Score: 5, Informative

      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.

      --
      Signature applied for, Patent Pending
    3. Re:Surprisingly lazy by Jaysyn · · Score: 4, Informative

      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.

      --
      There is a war going on for your mind.
    4. Re:Surprisingly lazy by CrimsonAvenger · · Score: 4, Informative

      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.

      --

      "I do not agree with what you say, but I will defend to the death your right to say it"
  5. Giving credit where credit is due... by mschaffer · · Score: 5, Insightful

    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.