Police Tell Courts Non-Disclosure Agreement Prevents Them From Getting A Warrant For Cell Phone Tower Spoofers

from the NDAs,-the-new-4th-amendment-workaround dept

Tue, Mar 4th 2014 8:27am — Tim Cushing

As we've noted before, several law enforcement agencies, including the FBI, have been deploying "stingray" devices (devices that mimic cell towers) for years, using them to collect data on thousands of cell phone owners. Almost every single "stingray" device has been put into use without informing the public. That opacity is standard operating procedure for everyone, from local law enforcement all the way up through the DOJ.

This opacity is to be expected. The public is rarely notified in advance of deployment. It's only after the use is discovered that an effort is made (and usually a weak one at that) to address the public's concerns. Officials tend to claim the "danger" presented by being transparent far outweighs whatever collateral damage to privacy or civil liberties the public suffers.

That these devices are routinely used without a warrant is also, sadly, unsurprising. As far as the law has been interpreted, US citizens have very little expectation of privacy in the so-called "business records" generated by their cell phones' connection to each and every cell tower. This is why "cell tower dumps" have become a go-to tool for warrantless data hauls.

So far, so routine. But as Kim Zetter at Wired reports, there's yet another reason law enforcement agencies aren't seeking warrants before deploying stingray devices.

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.

During proceedings in the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.

This is a new dodge. Law enforcement has usually avoided obtaining warrants by using the third party doctrine and, in most states, this has been deemed perfectly legal. However, it seems unlikely that judges will be sympathetic to claims that a private contractor's NDA supersedes stipulations meant to keep law enforcement in adherence with the Fourth Amendment.

This surprising admission by the Tallahassee Police Dept. is part of a sealed court record. This was inadvertently exposed during the appeal. Courtroom video shows just how irritated two of the presiding judges were at the PD's violation of warranty requirements.

When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.

“No, no, no, no, no,” he said. “I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology.”

His fellow judge then interjected loudly, “Two-hundred times they have not.”

This appears at about the 18:00 mark on the video of the oral arguments. The government attorney's explanation (beginning around 16 minutes in) is also informative and entertaining as she dances around the illegality of the entire situation, which also included a warrantless search of an apartment. Apparently, the government's argument is that it intended to get a warrant for the apartment search, which is supposedly as legitimate as actually obtaining one. (The questions about consent for the search are far from settled, something a Tallahassee police officer made even cloudier by blocking the door from being shut with his foot.)

So, two hundred times the Tallahassee police department deployed a stingray device and never bothered getting a warrant (and that's just since 2010). When finally pressed on the issue, it deferred to the manufacturer's NDA. The manufacturer (Harris) has itself deferred any questions to the police department.

Unfortunately, this case will not be dealing with the warranty requirements for stingray devices, nor the PD's insistence that a manufacturer's NDA should allow it to skirt any potential privacy issues and withhold information in court cases.

This should put the spotlight on manufacturers of "stingray" devices. If they're using NDAs to keep the public uninformed and prevent the discussion of usage even in court, that's a huge problem. If these agreements are common across manufacturers, then there can be no doubt that law enforcement agencies across the nation have falsified reports and generated alternate narratives to cover up the origins of obtained evidence.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fourth amendment, nda, police, stingray, surveillance

20 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 4 Mar 2014 @ 8:37am

> That these devices are routinely used without a warrant is also, sadly, unsurprising. As far as the law has been interpreted, US citizens have very little expectation of privacy in the so-called "business records" generated by their cell phones' connection to each and every cell tower. This is why "cell tower dumps" have become a go-to tool for warrantless data hauls.

Hang on a minute Mike! That defense shouldn't work. Let's say it does work for carriers, because they are supposed to give you this service and handle the data, so it's like you agreed to give them the data this way.

But that doesn't apply to authorities doing this, and "intercepting" your data. It sounds a whole lot like hacking, and we're not going to say that hacking of data doesn't matter now, because of the 3rd party doctrine, are we?

So if they are using the 3rd party doctrine as a defense for them intercepting data like this, then it's total BS.
[ link to this | view in chronology ]
- Anonymous Coward, 4 Mar 2014 @ 10:34am
  
  Re:
  Maybe they're using something more like, you're using radio waves to broadcast a signal, and so it's fair game just like any TV station is fair game.
  
  Or maybe they'll just claim that you INTENDED your data to go to a third party, and they COULD have obtained it from them, so they're just cutting out the middleman. Sounds about like something they'd try to argue in court.
  [ link to this | view in chronology ]
  - John Fenderson (profile), 5 Mar 2014 @ 7:14am
    
    Re: Re:
    "Maybe they're using something more like, you're using radio waves to broadcast a signal, and so it's fair game just like any TV station is fair game."
    
    They might be able to argue this if all they were doing was passively listening to radio signals. However, these systems are interacting with cell phones in a fraudulent way.
    
    This is unambiguously hacking. The government would agree 100% if it were a private citizen doing it.
    [ link to this | view in chronology ]
Michael, 4 Mar 2014 @ 8:39am

You know they are lying any time a law enforcement agency in the US says they aren't doing something because it is unlawful.
[ link to this | view in chronology ]
- Anonymous Coward, 4 Mar 2014 @ 9:40am
  
  Re:
  But it's only against the law when you lie to them -- not when they lie to you.
  [ link to this | view in chronology ]
Anonymous Coward, 4 Mar 2014 @ 8:44am

So, instead of pleading the 5th, do we just plead the NDA these days?

Also, regarding: "The public is rarely notified in advance of deployment." Of course they're not going to tell the public in advance; it would defeat the purpose. It would be like an undercover officer making a public statement detailing the dates of when he'll be undercover.
[ link to this | view in chronology ]
vastrightwing, 4 Mar 2014 @ 8:55am

NDA, the ultimate amendment
Of course , I could never remember the constitution where it says private corporation non disclosure agreements always trump privacy and other civil liberties.

And you think public servants aren't that smart? LOL, well, here you go, they are a very creative bunch: they always come up with brilliant justifications for their actions. If only I could come up with brilliant rhetoric.
[ link to this | view in chronology ]
- PRMan, 4 Mar 2014 @ 9:02am
  
  Re: NDA, the ultimate amendment
  You're too smart.
  [ link to this | view in chronology ]
  - art guerrilla (profile), 4 Mar 2014 @ 11:51am
    
    Re: Re: NDA, the ultimate amendment
    i imagine just about any techdirtian is 'too smart' (relatively speaking), and thus will be in the first wave of 'dissidents' to be renditioned to the re-education kamps...
    its for our own safety, of course...
    
    resistance is futile, join the borg...
    [ link to this | view in chronology ]
zip, 4 Mar 2014 @ 9:07am

Non-disclosure agreements have NEVER applied to courts, and most NDAs even specifically state that in the contract.
[ link to this | view in chronology ]
- Anonymous Coward, 4 Mar 2014 @ 9:18am
  
  Re:
  Ours did. Our NDA stated very plainly that if you told anybody about our thing we'd break your fucking legs. And if you told the cops or the courts, you'd be sleeping with the fishes, your family would sleep with the fishes, your fucking dog would sleep with the fishes.
  [ link to this | view in chronology ]
Peter (profile), 4 Mar 2014 @ 9:17am

What's next, legal contract murder?
'It may be against the law, your honor, but I had a signed contract saying I had to shoot the guy.'
[ link to this | view in chronology ]
- Death Row Inmate in Texas (profile), 4 Mar 2014 @ 9:47am
  
  Re: What's next, legal contract murder?
  Oh man, I so totally tried that defense, but the dirty cop and I only had an oral contract, so the judge didn't bite. Hard lesson learned.
  [ link to this | view in chronology ]
- Anonymous Coward, 4 Mar 2014 @ 10:07am
  
  Re: What's next, legal contract murder?
  Indeed, it's business law 101, a part of a contract, or even the whole thing, is invalid if it tells someone to break the law.
  
  The only way a contract involving illegal things can be upheld is if the person breaking the law didn't know they were breaking the law.
  
  Such as for example, being given a bunch of heavy of boxes to transport from one location to another, only to realize later that the boxes were full of illegal drugs. In that case while the person who hired you to transfer the illegal stuff broke the law, they can't refuse to pay you because the contract involved you breaking the law. But if you knew full well you were transferring illegal goods, then they could get away without paying you, though if either of you brought it to court in that case you'd both be arrested for knowingly breaking the law.
  
  And, I highly doubt that the police didn't know that all those uses of stingrays without a warrant was illegal.
  [ link to this | view in chronology ]
Daniel Joseph Calvanese, 4 Mar 2014 @ 9:53am

I don't even know why we are having these discussions. These judges were cut out of the loop and are pretending to be pissed. Does it matter? All of our government agencies will do whatever, whenever, as long as it is possible. For example, the only way our communications will be private is if we make them private using the laws of physics. Assuming anything less is faking reality.

Then, how is it any different when we assume that the courts will act with respect to moral sense or constitutional law? I normally stop at the first contradiction, but we have a bazillion of those already. It is at this point that when the courts disregard their constitutional oaths, it is no longer the courts who are lying, but rather those who continue to believe them or pretend that they have any credibility whatsoever.

Can't we just call them out for the clowns they are and consistently stick with it?
[ link to this | view in chronology ]
Coyne Tibbets (profile), 4 Mar 2014 @ 12:23pm

No warrant, no admissibility
If I were on the court, I would explain it this way: We understand you can't get a warrant because of the NDA. That's not a problem. Your problem is that no evidence taken via the stingray is admissible in this state without a warrant.

So you go ahead and deploy your stingray, but you just as well burn the tapes after you record them, because they are not entering a courtroom in this state.
[ link to this | view in chronology ]
- shedly@comcast.net (profile), 5 Mar 2014 @ 9:45am
  
  Re: No warrant, no admissibility
  Excepting that would not prosecute the law enforcement's illegal actions.
  I am getting so tired of people just expecting that law enforcement has a legal right to hack into any system they want. You see it on so many crime dramas that it appears to be legitimate, and it's not. And since TV is where most morons get their education the public outrage over abused privacy rights never happens.
  [ link to this | view in chronology ]
Beta (profile), 4 Mar 2014 @ 8:46pm

Imagine that the courts accept this so-called excuse. And imagine that you are a manufacturer of surveillance equipment, in a meeting with police buyers the next day.

"So, if we buy this system, are you going to make us sign an NDA that forbids us to tell the courts about how we use it?"

How will you reply? Take a minute, think it over.
[ link to this | view in chronology ]
Tierzero, 7 Mar 2014 @ 11:39am

What the What?
How convenient for them. Can you imagine if everyone was able to come up with a NDA like that? Regardless of the legality, it won't change anything anyway.
[ link to this | view in chronology ]
KAROLE TULLY, 7 Sep 2015 @ 12:29pm

form
Nice ideas ! I was enlightened by the facts ! Does anyone know if my assistant could grab a fillable HBS Non-Disclosure Agreement version to complete ?
[ link to this | view in chronology ]