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When It Comes To Spy Gear, Many Police Ignore Public Records Laws
v3rgEz writes What should take precedence: State public records laws, or contractual agreements between local police, the FBI, and the privately owned Harris Corporation? That's the question being played out across the country, as agencies are strongly divided on releasing much information, if any, on how they're using Stingray technology to collect and monitor phone metadata without judicial oversight.
"The test for whether one is living in a police state is that those who are charged with enforcing the law are allowed to break the laws with impunity." -- J. Roland
The terms aren't illegal. Just because they conflict with public record laws doesn't make the terms illegal. Imagine you contract with Peter to sell your car, and then you contract with Paul to sell your car. No court is going to invalidate the contract with Paul just because you didn't have the right to sell him the car. The courts will enforce both contracts; one guy will get the car and the other will get damages for breach of contract.
In this situation the police will have to choose between obeying the terms of their contracts and violating public record laws, or obeying public record laws and violating the contract.
Presuming the police couldn't find a loop hole in their state's public record laws, what's likely to happen is that court A issues an injunction forcing the police to release the records. The FBI and/or Harris Corp would then sue in court B. The court B will not require the police to obey the terms because specific enforcement of a contract (google "specific enforcement", it's a term of art) is rare, especially where it would it would thwart a state law like this. Rather the remedy for a breach of contract is almost always monetary damages. Harris could collect a pretty penny from the municipality. The FBI is probably SOL because they won't be able to show any monetary damages, although theoretically they might be able to use Federal law to trump state public record laws.
In an adversarial system the prosecutor is theoretically supposed to zealously apply the criminal law. Theoretically the source of the problem are the legislatures, who have passed sweeping criminal laws that permit prosecutors to slap even petty criminals with a ridiculously long list of charges with ridiculous penalties. This is why everybody takes a plea deal.
In reality, though, I agree that prosecutors have an ethical duty to not apply the overreaching criminal laws that the legislature keeps passing. But because the laws exist, and the prosecutor is sworn to uphold them, it's kind of difficult to accuse any prosecutor who doesn't out-and-out flout the law (like hiding evidence) for being unethical.
If you're seriously interested in the issue, I suggest reading "The Collapse of American Criminal Justice", by the late Harvard law professor William Stuntz. Not only was Stuntz one of the nations' pre-eminent scholars on criminal justice, he was a conservative evangelical. I mention that only because I want to point out that the book is not some kind of left-leaning, free Mumia Abu-Jamal type thing. Not only are the theories solid (including debunking broken window policing, etc), it's actually a ridiculously well researched historical survey of the history of American criminal justice. The book is chock-full of numbers and statistics going all the way back to the founding of the country, many of which he and his research assistants had to compile themselves. In other words, it contains a lot of strong, original research. He backs up his theories (none of which are earth shattering or especially controversial) with hard evidence. What's great about the book isn't some deep insight, just that it paints an unobjectionable and comprehensive picture of the evolution of the system in a way that has never been done before. You can't _not_ disagree with this conclusions, no matter your political persuasion.
The sad thing is that American criminal laws have been getting more strict since almost the very beginning, although slavery and immigration brought some ups-and-downs along the way. But the degeneration has basically been 200-year-long trend.
I recommend that you clarify your comment or else someone might mistake you for believing that the States are sovereign rather than the people.
Unlike the First Amendment, the Fourth through Sixth Amendments do not specifically constrain the federal government therefore they protect the people against the States as well. In addition, the Due Process Clause of the Fourteenth Amendment specifically constrains the states.
If I contract with Peter to sell him 100kg of cocaine and I get arrested while doing so, I can't use the contract in court to claim immunity from the law.
The linked to article, written by the organization that's trying to get the records, is more fair than the Slashdot summary. If you read the actual article, you'll see that it's not a case of policy "ignoring public records laws". In a lot of the cases, the states are claiming that Stingray documents fall under the exceptions IN THE PUBLIC RECORDS LAWS. That's not "ignoring the law." If the requesting party appeals, they still have to convince a judge that that's the correct interpretation of the law. In the states where the documents don't potentially fall under such an exception, they still have a *contract* with the federal government that requires them to allow the federal government to exhaust their own legal options before releasing the data. The Contract Clause "No state shall .... pass any ... Law impairing the Obligation of Contracts" combined with the Supremacy Clause (which basically says that the constitution and federal laws made in accordance with it are the law of the land, "anything in the constitution or laws of any state to the contrary notwithstanding.") give the federal government a very good chance of preventing disclosure by taking the case to a federal court. The rule of law doesn't mean that the government doesn't have any powers or that all legal disputes are settled the way YOU want them to. Everything about this situation is a perfect example of the rule of law working exactly as it should. There's a disagreement, conflicting contracts and laws, and legal ambiguity, so the parties will have to GO TO COURT to sort it all out.