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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."

13 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 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: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
  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.