New Documents Show FBI Instructing Law Enforcement To Throw Out Cases Rather Than Give Up Info On Stingray Use

from the in-order-to-ensure-the-public's-safety,-we-must-compromise-the-public's dept

Wed, Apr 8th 2015 12:20pm — Tim Cushing

Documents obtained by the New York ACLU (via a lawsuit, naturally) provide more details on the FBI's efforts to cover up usage of Stingray devices. Back in February, an FBI memo obtained by the Minnesota Star Tribune stated clearly that the agency required all public records requests for Stingray documents be routed through it.

This agreement between the FBI and the Erie County (NY) Sheriff's Department is even more restrictive. It opens up with the FBI repeating one of its lies in hopes of making the highly-restrictive agreement following it seem less like federal bullying and more like just one of those unfortunate byproducts of pesky regulation.

Consistent with the conditions on the equipment authorization granted to Harris Corporation by the Federal Communications Commission (FCC), state and local law enforcement agencies must coordinate with the FBI to complete this non-disclosure agreement prior to the acquisition and use of the equipment/technology authorized by the FCC authorization.

This paragraph is apparently included in every FBI/Stingray agreement and, according to the FCC, it's all a bunch of BS. The FCC may require coordination with the FBI prior to the purchase of Stingray equipment, but it does NOT require the signing of a non-disclosure agreement. Here's its reply to an FOIA requester seeking the text of this supposed FCC requirement.

We do not require that state and local law enforcement agencies have to complete one or more non-disclosure agreements with the Federal Bureau of Investigation prior to acquisition and/or use of the authorized equipment. We have no documents responsive to your request.

So, the FBI opens with a lie, and then moves on to instructing law enforcement agencies to lie about their Stingray usage... to damn near everybody.

In order to ensure that such collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions, operation, and use shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including but not limited to: in press releases, in court, during judicial hearings, or during other public forums or proceedings.

The government wants law enforcement agencies to lie to the courts -- which includes lying to judges, prosecutors and defendants. Everyone is included. This is made even more explicit a few paragraphs later.

The Erie County Sheriff's Office shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology… beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State's case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.

In short: parallel construction. The Sheriff's Office can hand over the results of Stingray collections, but not divulge how it arrived at these results. If it's going to deploy a Stingray, it either needs to do it without a warrant, or mislead the judge on its search techniques when applying for one.

When not lying to judges, the Sheriff's Office will need to lie to defendants and their counsel. Most incredibly, the FBI instructs the law enforcement agency to directly disobey court orders, if it would mean turning over Stingray information.

If any of this seems unavoidable, our nation's top law enforcement agency encourages its colleagues to toss out criminal prosecutions rather than risk exposing Harris Technology's equipment.

In addition, the Erie County Sheriff's Office will, at the request of the FBI, seek dismissal of the case in lieu of using, or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology [...] if using or providing such information would potentially or actually compromise the equipment/technology.

With one caveat…

This point supposes that the agency has some control or influence over the prosecutorial process.

But what a caveat. This is the FBI stating that it assumes any law enforcement agency it enters into this agreement with can easily push prosecutors to drop cases. It naturally follows that this sort of influence would also allow law enforcement agencies to push questionable prosecutions forward, if so inclined.

If the law enforcement agency doesn't have that kind of pull, the FBI suggests they make rogue prosecutors sign on the dotted line as well.

Where such is not the case, or is limited so as to be inconsequential, it is the FBI's expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.

And the lies being told by the Erie County Sheriff's Department have already been numerous. As the NYCLU points out, a court order for the deployment of the devices was obtained only once in the 47 incident reports returned as responsive documents -- which isn't what Sheriff Howard said when (mostly not) answering questions about his office's Stingray use last May:

Howard said the machines are used under "judicial review" in all criminal matters.

Well, obviously not. And for that matter, the Sheriff's Office isn't performing much oversight on its own. The NYCLU requested several more Stingray-related documents, including department policies, warrant applications, agreements with communications providers and records concerning the technology's use in investigations. None of these requested documents were withheld. They simply did not exist. The NYCLU sees this as extremely odd:

This leaves us puzzled. Either the $200,000 device is just sitting around somewhere without being used or the agency is using the device without creating and maintaining records.

The latter is more probable, especially in light of the FBI's restrictive non-disclosure agreement. There's no better way to avoid violating that agreement than simply not creating any records that might somehow find their way to the many venues the FBI has listed as off-limits.

What it all boils down to is this: the FBI believes it is more important to protect law enforcement technology than protect the public. It says toss out prosecutions if it might compromise Stingray specifics and actively withhold information from every other participant in the justice system -- from defendants seeking information in discovery all the way up to every judge, at every level, presiding over these cases. The first potentially puts dangerous criminals right back out on the street. The latter guts the protections built into the system. Neither of these are done in the public's interest, and as far as these documents go, the public is way, way down on the FBI's list of priorities. The same goes for law enforcement agencies that willingly sign these agreements.

20120629 Renondisclsure Obligations(Harris ECSO) (PDF)20120629 Renondisclsure Obligations(Harris ECSO) (Text)

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Filed Under: doj, erie county, erie county sheriff's department, fbi, secrecy, stingray
Companies: aclu

62 Comments

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Anonymous Coward, 8 Apr 2015 @ 12:31pm

Innocent until proven guilty
In other words this device is meant to be used outside of all legal processes. So when we find out it has been used to obtain blackmail not only on suspects, but on official in charge of funding and overseeing police, it won't be a surprise.
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Anonymous Coward, 8 Apr 2015 @ 12:33pm

What are they saying?
"In order to ensure that such collection equipment/technology continues to be available for use by the law enforcement community, "

Are they actually making a claim that they know it would be taken away from them if anyone found out how it actually functions?
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Anonymous Coward, 8 Apr 2015 @ 12:35pm

Has the US Gov really sunk so low?
I cannot even begin to express my dissapointment that the US government has sunk to such a low. The total disregard for the constitution, the lies, the denials, the coverups and the misdirection. It is really hard to tell the FBI, NSA, DHS, congress, senate and whitehouse from the criminals.
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Quiet Lurcker, 8 Apr 2015 @ 12:38pm

So, if there's even the slightest indication one of these things has been used, the FBI has just handed the defendant in question a 'get out of jail free' card.

http://tvtropes.org/pmwiki/pmwiki.php/Main/NiceJobBreakingItHero

'Nuff said.
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Roger Strong (profile), 8 Apr 2015 @ 12:57pm

Re: What are they saying?
With Stingray use now common knowledge, they're trying to protect the remaining details.

Ted Striker: My orders came through. My squadron ships out tomorrow. We're bombing the storage depots at Daiquiri at 1800 hours. We're coming in from the north, below their radar.
Elaine Dickinson: When will you be back?
Ted Striker: I can't tell you that. It's classified.
- Airplane!
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Anonymous Coward, 8 Apr 2015 @ 12:58pm

Re: What are they saying?
That is exactly what they are saying.
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That One Guy (profile), 8 Apr 2015 @ 1:01pm

Re:
You'd like to think so, but far too many(though one would be 'too many') judges buy their 'We can't tell you because National Security: Because Terrorists!' rot, and just let them get away with whatever they want to do.

If that includes presenting evidence and not letting the defense know where and how it was collected, well, that's the price to pay for security right, abolishing the rights of the public?
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Irving, 8 Apr 2015 @ 1:12pm

But it's not a police state. Worse things were done in Eastern Europe in the last century.
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Anonymous Coward, 8 Apr 2015 @ 1:20pm

Re: What are they saying?
"We need to keep our toys at all costs! Even if it means we just let the bad guys go after catching them..."

Sounds like the act of using stingrays to catch the baddies has become sport fishing - catch and release... fucking brilliant!
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Anonymous Coward, 8 Apr 2015 @ 1:20pm

Re: What are they saying?
Not quite - what I'm hearing is that they'd rather be state-sanctioned terrorists than obey the law.
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renosablast (profile), 8 Apr 2015 @ 1:24pm

they know the feces will come in contact with the air circulation device
When the truth comes out that stingrays actually inject code into the baseband receiver of a target phone, making it permanently compromised, the jig will be up.
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Anonymous Coward, 8 Apr 2015 @ 1:38pm

If they gained evidence using this technology and do not want to tell the defence and judge how they obtained the evidence then the cases should be thrown out.

Isn't that how it's supposed to work ?
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Anonymous Coward, 8 Apr 2015 @ 1:58pm

Re: they know the feces will come in contact with the air circulation device
I wish this was totally far fetched tin-foil hat thinking. But I think it's safe to assume it's not.
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nkman (profile), 8 Apr 2015 @ 2:03pm

Not a police state
@Irving,
"But it's not a police state. Worse things were done in Eastern Europe in the last century."

Perhaps my irony detector has malfunctioned.

Why would I want to compare my society with those of Eastern Europe of the last century? Did they have a monopoly on police statism?
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Anonymous Coward, 8 Apr 2015 @ 2:03pm

Re: they know the feces will come in contact with the air circulation device
What sort of code are you thinking of? It originated as a military device, and they would wish to listen in after the phone has gone out of range, so a redirect via a listening/recording station seems reasonable.
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justme, 8 Apr 2015 @ 2:04pm

Down the rabbit hole. .
The effort to prevent any information about stingray's out of the court's, much like the effort to prevent any legal challenge to the N.S.A.'s collection program, Isn't about protecting the public from criminals or terrorist's.

It's about preventing any legal examination of tactic's which almost certainly would be ruled illegal/unconstitutional. But as long as they can prevent such a ruling, they can continue to claim legality, based solely on the opinion of there own in house counsel.

If they took an oath to 'protect and defend the constitution', the have failed completely!
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Anonymous Coward, 8 Apr 2015 @ 2:06pm

AAAAH it's the king's new cloths all over again.
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PlagueSD (profile), 8 Apr 2015 @ 2:08pm

"If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”
- Joseph Goebels

If you don't know who Joseph Goebels is, he was Hitler's Minister of Propaganda.
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Anonymous Coward, 8 Apr 2015 @ 2:08pm

Why are senior members of the FBI not in jail yet? Explicitly telling law enforcement and prosecutors to lie to judges and drop valid cases is criminal.
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Quiet Lurcker, 8 Apr 2015 @ 2:12pm

Re: Has the US Gov really sunk so low?
>> It is really hard to tell the FBI, NSA, DHS, congress, senate and whitehouse from the criminals.

No disrespect, but I think your assumption that there is a difference is more than slightly wrong.
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MikeC (profile), 8 Apr 2015 @ 2:14pm

The real problem is the courts
The real problem in the majority of these cases is not the police. It's the court system - our government of checks and balances has failed. The court system does not check the government or it's enforcement function, the police.

This case is one of the few where the courts have stood up and done their job. From the supreme court on down we have been failed by the system designed to protect us from this kind of tyranny. I honestly haven't the slight idea how to fix this within the confines of the system since the system itself has failed.
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Ambrellite, 8 Apr 2015 @ 2:15pm

When are we going to admit that, like the CIA and NSA, the FBI is institutionally corrupt (and has been for decades)? The organization needs to be thoroughly investigated and reformed, if not dismantled.
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Anonymous Coward, 8 Apr 2015 @ 2:20pm

If you outlaw guns, only law enforcement will have them.
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That One Guy (profile), 8 Apr 2015 @ 2:36pm

More than enough blame to go around
It's both. The police and government agencies for lying to the courts, and the courts for not dismissing or overturning the cases as a result of the lies. The government and police for presenting evidence from 'confidential' and 'classified' sources, and the courts for not throwing that evidence out.

Both sides are quite guilty, it's not just one or the other.
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John Fenderson (profile), 8 Apr 2015 @ 2:58pm

Re:
In terms of being a surveillance state, the old East Germany has nothing on the present day US. On the whole, we are the most surveilled population in history.

Certainly things were much more unpleasant in other places and times, but that has nothing to do with anything -- unless you're asserting that things are just fine as long as they aren't as bad as they could possibly be. I hope not, because that is a recipe for the acceptance of tyranny right there.
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Uriel-238 (profile), 8 Apr 2015 @ 3:20pm

Because ambiguously legal toys are so much fun.
You know, law enforcement doesn't like to admit that they have sap gloves either.

I have a pair because they're not illegal because to make them illegal would be to inform the public that such things exist.

They're leather gloves with pockets of iron shot atop the fingers from the first-to-the-second knuckles. They're very big with the police.

Brass knuckles are still illegal. Even police officers are not allowed to use them. But sap gloves are.

Think about that the next time you see a cop pugilizing an old woman.
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nasch (profile), 8 Apr 2015 @ 4:20pm

Re: Hyperion wishes to remind you that it could be much worse.
Is that a Borderlands reference?
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BlueLIghtMemory, 8 Apr 2015 @ 4:29pm

Comey's a bad boy
Comey????

You and your people are advising that criminal cases be dropped in order to protect the 4th amendment violating uses of your idol namned Stingray?

Shame on you Comey. Do the right thing and turn yourself in Comey. You're a criminal.
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Anonymous Coward, 8 Apr 2015 @ 5:23pm

Re: What are they saying?
We call this "mens rea".

http://en.wikipedia.org/wiki/Mens_rea
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Anonymous Coward, 8 Apr 2015 @ 9:09pm

It appears the FBI has gone rogue just like the CIA by carrying out 'the ends justify the ways and means' mission. Torture is one of the rogue missions in the CIA's case. Subverting Constitutional law, FOIA Act law, due process, and all around subversion of America's judicial system in the FBI's case of Stingray use while burning down the paper trail.
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Uriel-238 (profile), 8 Apr 2015 @ 10:06pm

Re: Re: Hyperion wishes to remind you that it could be much worse.
(A direct quote, even.)
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Uriel-238 (profile), 8 Apr 2015 @ 10:17pm

This might present a means of actively defending against "classified" sources
If our defense lawyers get into the practice of challenging any evidence from classified / national-security-protected sources to be a stingray device, this may ultimately serve as a counter against evidence from opaque sources.

It'd work if the judges and juries weren't completely eager to slap a guilty plea whenever a police officer told a colorful enough yarn in his testimony.
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David, 9 Apr 2015 @ 3:00am

Re: Has the US Gov really sunk so low?
The US government has more complex accounting than common criminals. There really is no equivalent to the IRS.
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David, 9 Apr 2015 @ 3:40am

Re:
Attributing it as an internal memo by Michael Hayden would have been equally plausible.
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Maggie (profile), 9 Apr 2015 @ 4:20am

Stingray Blockers
What we really need is for someone enterprising to develop technology that will block stingrays from grabbing our cell signals.
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David, 9 Apr 2015 @ 4:22am

Re:
District attorney Henry Martyn, may I call you Henry? Well, it would appear from your communications with Judge Miller that you are preparing or rather contemplating bringing suit against some of our finest FBI men.

We all know how important successful suits turn out in the career of a district attorney, so this does not seem like a smart move. I doubt your mistress would approve.

I know of some attorneys entertaining similar ideas just to find out on the eve of the trial that they did not, in fact, have all the evidence they thought they did. And it turned out that there was irrefutable proof that the evidence they had was forged, and there were glaring inconsistencies in the evidence they handed in that had escaped their previous notice. What a setback. We certainly would not wish anything like that on anybody.

By the way, don't you think that you drive to Heidelberg too frequently?
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DannyB (profile), 9 Apr 2015 @ 5:42am

Re: What are they saying?
What they are saying is that Stingray does something that would not be allowed if exposed in the light of day.

That suggests that there may be even more to Stingray than we suspect.
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Padpaw (profile), 9 Apr 2015 @ 5:44am

judge jury and executioner as well as believing and acting as if they are above the laws.

Must be nice to have such a bunch of criminals acting as police with zero oversight or accountability most of the time.
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Padpaw (profile), 9 Apr 2015 @ 5:49am

Re:
what defines a police state?

I thought it was when the police are allowed to pretty much to whatever they want with next to zero accountability for their criminal actions
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Padpaw (profile), 9 Apr 2015 @ 5:50am

Re:
same reason holder is not in jail for perjury. They are treated as above the law
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John Thacker, 9 Apr 2015 @ 6:10am

Here's a case in Baltimore
Just this week a detective in Baltimore admitted on the stand ignoring court orders and subpoenas from state and local courts, including a trial at hand, because of the FBI NDA (and that he talked to the FBI last week about the case.)
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John Fenderson (profile), 9 Apr 2015 @ 8:11am

Re: Re:
Technically, a "police state" is form of totalitarian government where social, political, and economic control is extreme, usually enforced through the police or military. Police states commonly use "secret police" as their main instrument of political control.

Ironically, "police state" originally meant a government that was controlled by civil authorities (as opposed to military), and was not a derogatory thing at all. Under that definition, all modern democracies are in fact police states. The definition changed to its current meaning in the early 20th century.
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Anonymous Coward, 9 Apr 2015 @ 8:22am

Re:
If you don't know who Goebels was, you REALLY need to retake History and pay attention this time.
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Anonymous Coward, 9 Apr 2015 @ 8:26am

Re: Comey's a bad boy
Strange thing is Comey wasn't always bad. He actually was one of the people that initially recognized that there was a major problem with the legality of STELLAR WIND but that was way before he was given the reins to the FBI. I really want to know WTF actually turned him.
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Anonymous Coward, 9 Apr 2015 @ 8:37am

I don't think it will be too long before a reliable means of detecting these will be created and released.
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tqk (profile), 9 Apr 2015 @ 8:43am

Re:
Yes, it is, so why are they still using them? If using them leads to cases being tossed out, why are they using them?
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tqk (profile), 9 Apr 2015 @ 9:09am

Re:
I don't think it will be too long before a reliable means of detecting these will be created and released.

When/if the word gets out, you'll start to hear large crowds of people around you shout "2G!" when they're being used near you. Which is what they do. They force all phones in their vicinity to fall back to 2G which is hackable by anyone who can, including the fibbies.
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Anonymous Coward, 9 Apr 2015 @ 9:19am

Re: Re:
What I see needing to happen is a mapping of the coordinates and unique identifiers of all existing cell towers that can then be published as a sort of white list. Then software that acts as a firewall of sorts that automatically drops all requests to connect from any unverified source not on the list and not located where it is supposed to be effectively making a personal device completely invisible to these sorts of devices.
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nasch (profile), 9 Apr 2015 @ 9:36am

Re: Re: Re:
Then software that acts as a firewall of sorts that automatically drops all requests to connect from any unverified source not on the list and not located where it is supposed to be

I don't think the phone can tell where the tower is. Maybe over time as it moved around it could guess based on signal strength, but that would be pretty unreliable and by that time the Stingray has been snooping on you for a while anyway.
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John Fenderson (profile), 9 Apr 2015 @ 9:46am

Re: Re: Re:
There are a few Android apps that do this right now, although not in the most convenient form for this particular purpose.
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Anonymous Coward, 9 Apr 2015 @ 9:56am

Re: Re: Re: Re:
It looks like someone is already working in that direction:

https://secupwn.github.io/Android-IMSI-Catcher-Detector/
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DannyB (profile), 9 Apr 2015 @ 10:27am

Re:
> But it's not a police state.

It is a surveillance state. This is a step towards a police state. It is necessary to have intelligence to stop any organized opposition.
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DannyB (profile), 9 Apr 2015 @ 10:31am

Re:
> "If you tell a lie big enough and keep repeating it,
> people will eventually . . . .

Truth is like the sun. You can shut it out for a time, but it ain't goin' away.

Elvis Presley
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Anonymous Coward, 9 Apr 2015 @ 10:52am

Re: Re: Re: Re:
https://play.google.com/store/apps/details?id=cellmapper.net.cellmapper

This appears to be able to locally calculate the location.
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nasch (profile), 9 Apr 2015 @ 10:53am

Re: Re: Re: Re: Re:
It looks like someone is already working in that direction:

Good! Though it works by other means than determining where the tower is:

https://github.com/SecUpwN/Android-IMSI-Catcher-Detector#what-it-does
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Uriel-238 (profile), 9 Apr 2015 @ 11:02am

So it's been throughout most of history.
Feudal Europe was run by warlords who policed with zero oversight and sustained their power with brute force, as necessary.

It worked out poorly for their vassals a lot of the time when they failed to recognize the value of the rabble.

That's why we got into this newfangled idea of government by collaboration, or requiring even administrators to follow the law.

Seems like our first version has some bugs in it.
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Anonymous Coward, 9 Apr 2015 @ 11:04am

Re: Re: Re: Re: Re: Re:
I only mentioned the location as a means of approaching the problem from a means of authenticating the towers you actually use and excluding all others instead of trying to detect fake ones. If you can make sure you are only connecting to real ones and that your device ignores all other requests then you don't have to worry about detecting the fake ones.
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Uriel-238 (profile), 9 Apr 2015 @ 11:08am

That'd be a nice feature then.
An app or OS feature that detects a switch to 2G and kills data throughput for a few minutes. My 2G service is frustratingly slow anyway.

Of course, I suspect that's only a temporary solution, as they're probably building better phone spoofing technology as we speak.

Still, I'd buy that for a dollar.
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Uriel-238 (profile), 9 Apr 2015 @ 11:10am

I'd still like to add that a sabotage campaign against spoofing towers...
...would add a particular shine to my news day.

If anyone out there is looking to start practicing for the revolution.
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Anonymous Coward, 9 Apr 2015 @ 11:29am

Re: I'd still like to add that a sabotage campaign against spoofing towers...
I would love to watch that case play out when that happened. Local PD spend thousands of dollars on a cell tower spoofer only to have it detected and malware uploaded by the suspect that fries the firmware. They charge him with destruction of police property but in doing so have to admit that they were using the device without a warrant in the first place.
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GEMont (profile), 9 Apr 2015 @ 5:39pm

The Adversary R U
"...and as far as these documents go, the public is way, way down on the FBI's list of priorities."

Oh I don't know about that.

Looks to me like the public is number one on their list of priorities actually.

After all, its the public that is being spied on by these devices, and its the public that the Feds are doing their criminal best to keep out of the loop concerning the potential and popular uses of these devices.

Nope. I'd say that John Q. Public is absolutely the first one on the priorities list - of suspects and criminals soon to be prosecuted, who must at all costs be kept ignorant of the tools being used against them.

Looks more and more apparent every day, that the Public really is being seriously considered as the enemy - the Adversary - by all branches of the Federal US Government.

When you declare war on Terrorists, you have no choice but to include your own public, as terrorists are nothing more than angry civilians - the public - and the Federal Government intends to make almost all US citizens without 6 to 8 figure incomes, very, very miserable in the very near future. :)

---
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Anonymous Coward, 22 Apr 2015 @ 10:26am

Coordinates: 30.2060, -81.5570 Dates: April 2014 – November 2014
Coordinates: 31.1100, -97.7800 Dates: October 2014 – December 2014
Coordinates: 28.0190, -82.6990 Dates: October 2014 - Present
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