New Emails Show That Feds Instructed Police To Lie About Using Stingray Mobile Phone Snooping

from the that's-not-how-it's-supposed-to-work dept

Fri, Jun 20th 2014 12:03pm — Mike Masnick

We've been covering the increasingly widespread use of Stingray or similar mobile phone tower spoofing equipment by law enforcement. The stories have been getting increasingly bizarre lately, starting with the news that police were claiming that non-disclosure agreements prevented them from getting a warrant to use the technology. And then, there was the recent news that the federal government was regularly stepping in to claim ownership of documents related to the technology (even when it's used by local police) in order to block them from being obtained under Freedom of Information laws. Just this morning, we wrote about some new evidence that police are claiming they need these devices to stop "weapons of mass destruction," though they then just use them to spy on people suspected of everyday crimes instead.

Late last night, the ACLU came out with perhaps the most explosive information so far: a set of internal police emails showing that the US Marshals have been instructing police to lie to courts about the use of such devices. Specifically, rather than revealing the use of the tool, they're told to just tell the court they got the information from a "confidential source." While affidavits may initially note the use of such a device, the police are told to submit a new affidavit after the fact without mentioning the Stingray, and seal the old one, so that it never becomes public. The key parts of the email are highlighted below:

This is highly questionable. Just to repeat: this is the federal government loaning out equipment to spoof mobile phone towers to spy on people and then instructing (practically demanding) that the police hide or suppress this information by claiming that it came from a "confidential source" and by sealing any affidavits that accidentally mention the use of the equipment. As the ACLU notes this practice "deprives defendants of their right to challenge unconstitutional surveillance ." It also seems like a fairly straightforward due process violation. This even goes beyond "parallel construction" in which illegal surveillance is concealed by "recreating" it in other ways. In this case, you have illegally obtained evidence... and then police are just told to lie to the court about it.

This is stunningly bad.

As some legal experts are quick to note, this seems like an astoundingly stupid move by both the US Marshals and the local police who took them up on their request. That link, includes quotes from a number of legal experts interviewed by Cyrus Farivar at Ars Technica, some of whom are actually supportive of the use of Stingrays, but who note that this effort could very well be fraud on the court.

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: cell phone spoofing, fraud on the court, law enforcement, lying to court, sarasota, stingray, surveillance, us marshals

42 Comments

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

Reader Comments

The First Word

“

Kyllo v. United States

I think they are afraid of Kyllo v. United States.

They are using these things without getting a warrant, yet its very very clear that Kyllo would have these things get a warrant:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."

(In this case, the search was an IR camera pointed at the home, and used to obtain a warrant looking for a grow room).

Even the dissent in Kyllo was predicated on the observation that "this device didn't penetrate the home, so its OK", which is certainly not the case with a Stingray, which searches within hundreds of homes to find a targeted phone.

I think they are (rightly) afraid that if warrantless use of Stingrays ever saw the inside of a courtroom, the resulting derived evidence would be thrown out by an angry judiciary.

—Nicholas Weaver

”

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 20 Jun 2014 @ 12:14pm

"unconstitutional surveillance"

Is there even such a thing anymore?
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 12:16pm

So dozens and dozens of law enforcerment agents and policemen will go to prison for this, right?
[ link to this | view in thread ]
PRMan, 20 Jun 2014 @ 12:17pm

Re:
Yes, there is. And there always will be. And thanks to patriots like Mike that fight endlessly for our Constitutional rights.
[ link to this | view in thread ]
Anon E. Mous (profile), 20 Jun 2014 @ 12:22pm

It's really amazing just how far the U.S. Government and it's agencies will go to cover up the fact that they are spying on it's citizens and even worse stacking the deck against people who may or may not have committed a crime.

The fact that they intentionally lie and use "confidential Source" in disclosure documents to a defendants counsel to hide the fact that a stingray was used to gather information on a person just further shows the effort the U.S. Government will go to hide the spying on it's own citizens through illegal means.

I foresee a lot of cases where people are charged because of Stingray evidence getting tossed one day because of the state intentionally lying about the "confidential Source" in a case.

I guess when the U.S. Government and the State violate your constitutional rights issue it's not an issue anymore. A travesty in the making is what this has become.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 12:35pm

Secrecy is for terrorists. If you've done nothing wrong, you have no need for any form of privacy whatsoever. Clearly the terrorists have infiltrated the government and are taking steps to conceal their activities.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 12:40pm

Is there any question remaining that the US is now a police state? Here is the USG, violating the laws of the land to justify it's own collection points. I would suspect that the USG has some sort of deal, either with Harris or with each police department it assists in funding for these Stingrays that a copy of the collected data goes to it.

This is a legal bomb waiting for it's time. We've heard of overzealous prosecutors hiding evidence to make the conviction in court. You now have evidence of collusion between the USG and the police to hide the source of the evidence in violation of criminal law proceedings. How long do you think it is going to take for some that have been falsely convicted on doctored evidence to have this in court?

Over the years, we've had a lot of those jailed as guilty having been proved never to have committed the crime through DNA. You now have another avenue that may turn out to be the same.

Bush wanted to be known as a war time president. What he really wanted was war time executive powers. All of those transferred into this police state mentality. The war is over unless Obama can drag us back into Iran. With that comes the lack of need for the spying apparatus on it's own citizens. You are now seeing the fight back to reclaim peacetime activities which of course the USG doesn't want to give up.
[ link to this | view in thread ]
Michael Donnelly (profile), 20 Jun 2014 @ 12:45pm

The only people more afraid of the terrorists than the US Govnernment this point?

The US Government.
[ link to this | view in thread ]
Nicholas Weaver (profile), 20 Jun 2014 @ 12:55pm

Kyllo v. United States
I think they are afraid of Kyllo v. United States.

They are using these things without getting a warrant, yet its very very clear that Kyllo would have these things get a warrant:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."

(In this case, the search was an IR camera pointed at the home, and used to obtain a warrant looking for a grow room).

Even the dissent in Kyllo was predicated on the observation that "this device didn't penetrate the home, so its OK", which is certainly not the case with a Stingray, which searches within hundreds of homes to find a targeted phone.

I think they are (rightly) afraid that if warrantless use of Stingrays ever saw the inside of a courtroom, the resulting derived evidence would be thrown out by an angry judiciary.
[ link to this | view in thread ]
ethorad (profile), 20 Jun 2014 @ 12:58pm

what is a confidential source?
To play devil's advocate, is "confidential source" defined anywhere? Granted it could mean that one of the accused's friends told the police where he was on condition of anonymity. However, the stingray presumably acts as a source of the information and the Feds are attempting to treat it in a similar manner.

I would say I'm with Mike that acting in this manner is essentially denying accused their fair trial and will lead not only to damage to the justice system but also to mistrials, retrials, and all round expense and hassle which has to be funded by the taxpayer.
[ link to this | view in thread ]
Nicholas Weaver (profile), 20 Jun 2014 @ 1:06pm

Re: what is a confidential source?
Confidential source can mean a legit confidential source. Or in this case, it means "Fuzzy Dunlop"...
[ link to this | view in thread ]
That One Guy (profile), 20 Jun 2014 @ 1:27pm

Re:
If the system were working, then yes, that and multiple cases and convictions would be thrown out due to tainted evidence and the perjury committed by the 'officers'.
[ link to this | view in thread ]
That One Guy (profile), 20 Jun 2014 @ 1:36pm

Please let this come back to bite them...
Hopefully the lawyers of those convicted due to evidence gained from a 'confidential source' like this demand a retrial or the charges be dismissed entirely due to this.

Maybe having a few dozen cases and convictions thrown out due to perjury and tainted evidence will convince the police to stop lying about where they got their evidence, though I imagine some perjury convictions and having 'cops' thrown in jail over it would get the message across even better.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 1:58pm

Re: Please let this come back to bite them...
When this will really bite is when people who are actually guilty of horrible crimes are freed...which they should be, if the evidence used to obtain their convictions was fraudulent and if those who testified against them perjured themselves. Let's see how the community reacts when they watch an axe-slinging murdered go free because the police were incredibly stupid enough to listen to this "advice" and actually do it.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 2:25pm

reading the linked article
At the end of the linked article it has a sorrowfully true point to make:

"'Theoretically, the judge could hold the requesting officer in contempt or could ask the Justice Department to investigate, which could in theory lead to termination or criminal prosecution. That will never happen�not with this administration. After all, if the [director of national intelligence] can lie to Congress without consequences, surely a law enforcement official can deceive a court without worrying about consequences.'"
[ link to this | view in thread ]
That One Guy (profile), 20 Jun 2014 @ 2:35pm

Re: reading the linked article
Congress is expected to be spineless though, filled with bought-and-paid for politicians who are terrible at getting anything done unless they're a) Getting paid for it, or b) Looking for an easy PR moment when re-election comes around.

Judges however, not too long ago, were expected to actually care if people broke the law, and/or were giving false evidence/testimony. Or at least that's how they were seen in the past. Now however... if you've got a badge and/or a high enough position, you could flip a judge the bird and tell them to get bent and they'd probably just take it like the cowards they increasingly are.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 2:43pm

Re:
No, it's clearly unconstitutional, but it's "legal" which is the problem.
[ link to this | view in thread ]
Bob Webster (profile), 20 Jun 2014 @ 2:54pm

Transparency?
Were those campaign speeches on government transparency by Obama just a dream?
[ link to this | view in thread ]
CJ (profile), 20 Jun 2014 @ 2:57pm

Re:
I believe it is far worse than many here believe it is. I also believe it is world wide.
[ link to this | view in thread ]
CJ (profile), 20 Jun 2014 @ 3:19pm

This is global not just in the USA
Think real hard everyone in the past a certain event happen and the event did not stay in the news for long. It seems to be swept under the rug. The event was the phone hacking scandal that had several celebs and news reporters answering questions for a few weeks and then everything went silent.

But why hasn't there been a large publicity about this? Where is the outcry? Many promised that the guilty would pay, so where are the guilty? Yes a news agency shut down, but it was reported the scandal was going on in several countries.

If the local police is in bed with the NSA and the Feds they could also be with the reporters. What better way to stay ahead of things going down in your neighborhood?
[ link to this | view in thread ]
X. Rodgers, 20 Jun 2014 @ 3:40pm

re: re:
"Hopefully the lawyers of those convicted due to evidence gained from a 'confidential source' like this demand a retrial or the charges be dismissed entirely due to this."
---

Re-read the email.
The whole point is that local police- at the behest of the Feds- are instructing other local police to essentially lie about the existence of this device in court documents so its existence isn't revealed.

There's an old saying in defense work...
What do you call an illegal wiretap?
The Confidential Informant"

Police routinely cite 'confidential sources' as being the basis for information that they attained via unconstitutional/illegal means. What this email is basically saying is that whenever someone uses this device, in order to preserve its secrecy, make sure to attribute the information derived to a 'confidential source' or an 'anonymous tip' so you don't have to reveal where it actually came from.

This is not only illegal, but its an insight into the sort of horrifyingly abusive compact that exits between cops everywhere.
[ link to this | view in thread ]
Kwon, 20 Jun 2014 @ 3:59pm

Damn government
This is why I re-encrypted my devices, so at the very least, every time a phone call or message is sent, it randomly generates a scrambling encryption in an attempt to delay surveillance from other devices.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 4:02pm

Of course law enforcement has to hide Stingray evidence from the court. If Stingray evidence appears in court, the defense will question how the technology works.

Once it comes out that Stingray technology searches and seizes the contents and metadata of everyone's phone calls inside a five square mile radius. That technology will be declared unconstitutional and equivalent to an untargeted general warrant.
[ link to this | view in thread ]
Cvnk (profile), 20 Jun 2014 @ 4:50pm

I don't get how this is considered "highly questionable". Isn't this just flat-out perjury?
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 4:53pm

I'm not a lawyer, so this is an honest -- if slightly aghast -- question: what the hell is a "confidential source" and how can such a source be used in the prosecution of an individual? Is this really allowed? What would prevent the prosecution from making stuff up and calling it "confidential?"
[ link to this | view in thread ]
James T (profile), 20 Jun 2014 @ 5:02pm

Re: Damn government
Encryption has to be two way (between you and the destination) for it to matter. You encrypting the connection to the tower is useless.
[ link to this | view in thread ]
James T (profile), 20 Jun 2014 @ 5:04pm

Re:
The police / government can do no wrong. You didn't know that?
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 5:24pm

Re: Kyllo v. United States
> Even the dissent in Kyllo was predicated on the observation that "this device didn't penetrate the home, so its OK", which is certainly not the case with a Stingray, which searches within hundreds of homes to find a targeted phone.

Let's be more clear.

An IR camera is a purely passive device; it receives and decodes radiation.

An IMSI catcher (the kind of device which AFAIK this "Stingray" thing is) is an active device; it transmits "beacons" pretending to be a cell tower, and then talks to cell phones (thus both sending and receiving).

It does not "search" hundreds of homes. It broadcasts radiation (thus it "penetrates" hundreds of homes). The targeted phone answers, as it would answer to a legitimate cell tower.
[ link to this | view in thread ]
useless eater, 20 Jun 2014 @ 6:08pm

Re: Please let this come back to bite them...
I don't think those people will know. The Stingray "confidential source" will be indistinguishable from any other confidential source.
[ link to this | view in thread ]
That One Guy (profile), 20 Jun 2014 @ 6:23pm

Re:
What would prevent the prosecution from making stuff up and calling it "confidential?"

In theory? The judge, defense lawyer, and the law.
In practice? Whether or not they think they can get away with it.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 6:47pm

Re: Re:
+1. Mike has done us a great service. The shills around here must be outraged.
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 9:09pm

you're kiddin' me! law enforcement lied? well i'll be...!
[ link to this | view in thread ]
Nop (profile), 21 Jun 2014 @ 12:27am

Re: Re: Please let this come back to bite them...
"Let's see how the community reacts when they watch an axe-slinging murdered go free because the police were incredibly stupid enough to listen to this "advice" and actually do it."

Sadly, what usually happens in this scenario is that people froth at the mouth about bad guys "getting off on a technicality", & the media bray for the judiciary to be able to ignore Constitutional protections.
[ link to this | view in thread ]
Nop (profile), 21 Jun 2014 @ 12:44am

Confidential informants
The way this works is that the cops get tipoffs from a "confidential informant" that a crime is likely to be committed at some particular time & place, so they know to stake it out & catch the Bad Guys in the act. My understanding is that that's completely legit, Constitutionally speaking, because they're not using the tipoff as actual evidence, just as a tool to help their investigation. Where it gets legally dicey is when they get their "tipoffs" via means that violate the 4th Amendment, but conceal the Constitutional violation by masking their data as coming from a "confidential informant, which is admissible, rather than from a source that isn't. That is the crux of this particular debate.
[ link to this | view in thread ]
Bergman (profile), 21 Jun 2014 @ 1:09am

Re: Kyllo v. United States
There's a flip side to this: It is illegal to intercept phone calls, among other things, without a warrant. The police, prosecutors, NSA and intelligence courts are essentially asserting that they don't need warrants because what they are doing isn't interception.

A warrant is what makes otherwise illegal actions legal, but if no warrant is required, those actions can't be illegal without one.

If it's not illegal to use such devices, then we could use them on our fellow citizens or even our government without committing illegal wiretapping or espionage. After all, if it's not illegal to do it without a warrant...
[ link to this | view in thread ]
Anonymous Coward, 21 Jun 2014 @ 9:52am

We need a law stating EXACTLY the opposite...
Whenever the "confidential source" is the assistance of Federal government by whatever means, disclosure should be required.
[ link to this | view in thread ]
GEMont (profile), 22 Jun 2014 @ 12:02am

Re: This is global not just in the USA
hmmmmm - sorta like embedded reporters in a war zone, riding with the troops (NSA and Cops) and reporting on only those things they are told to report on by the military brass...

Now that's a scary thought.

Mainly because it sounds absolutely correct as far as the mentality of the federal agencies and the cops are concerned.

And lets face it, the Truth Free Press is little more than well paid whore these days anyway.

That this scenario is real, would be no surprise at all.

---
[ link to this | view in thread ]
GEMont (profile), 22 Jun 2014 @ 12:07am

Re: Damn government
Did you not realize that by encrypting your stuff, you automatically get put on the suspicious adversary list, where everything you do is gathered into a dossier in case they need an excuse to bust into your home some day?

Until encryption becomes standard on all appliances used by the public, its use will be seen as an admission of guilt by those seeking to gather it all.

---
[ link to this | view in thread ]
John Fenderson (profile), 22 Jun 2014 @ 8:26am

Re: Re: Damn government
"where everything you do is gathered into a dossier in case they need an excuse to bust into your home some day?"

And this differs from the current "normal" how, exactly?
[ link to this | view in thread ]
GEMont (profile), 22 Jun 2014 @ 2:15pm

Re: Re: Re: Damn government
"And this differs from the current "normal" how, exactly?"

In the old order, you had an expectation of rights and the courts had a duty to protect those rights - the old innocent till proven guilty thing.

This new method allows that to be turned around somewhat to;

You are likely guilty till enough evidence can be found or manufactured to convince a court that you should be locked up.

How often have you heard the claim? - If you're innocent, then you have nothing to hide.

If you encrypt your email, you obviously have something to hide, therefor, you must be guilty of something.

Because you're guilty of something, all of the usual rules pertaining to dealing with a citizen's rights can be skipped and your Guilty Book can be started.

In effect, the start of your dossier, eliminates your legal rights.

The courts assume that if the government has a dossier on you, then you must indeed be guilty of something, and when the government busts down your door, shoots your dog, pistol whips your children and rips the walls out of your house, but finds nothing incriminating, it can use the "dossier" to "prove" they had sufficient cause to arrest you.

Since the dossier, or Guilty Book, cannot actually be shown to the court to prove the government's case against you because to do so would "compromise the agency's ability to use certain investigatory methods in their pursuit of evil-doers", no evidence is actually needed to get a conviction, or failing conviction, allow the government agency to walk away without the need to make reparations for false arrest.

Pretty much, its just semantics trumps the constitution.

---
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2014 @ 5:20pm

Re: Re: Re: Re: Damn government
When all else fails, just shoot the suspect dead and sprinkle a little cocaine dust on them.
[ link to this | view in thread ]
GEMont, 23 Jun 2014 @ 12:50pm

Re: Re: Re: Re: Re: Damn government
You got the picture.

Drugs eliminate rights and therefor, the need to show evidence.

A Government dossier is Proof of Guilt and eliminates rights and therefor, the need to show evidence.
[ link to this | view in thread ]
ethorad (profile), 24 Jun 2014 @ 4:48am

Re: Re: reading the linked article
That's "get bent your honour" or I'll hold you in contempt of court
[ link to this | view in thread ]