Baltimore PD Has Deployed Stingray Devices Over 4,300 Times, Instructed By FBI To Withhold Info From Courts

from the 'to-sever-and-deflect' dept

Thu, Apr 9th 2015 10:33am — Tim Cushing

Say what you will about the Baltimore PD and its cell tower spoofers (like... "It would rather let accused criminals go than violate its [bogus] non-disclosure agreement with the FBI…" or "It hides usage of these devices behind pen register/trap and trace warrants and then argues the two collection methods are really the same thing…"), but at least it's making sure the hundreds of thousands of dollars it's spent on the technology isn't going to waste.

On Wednesday, Baltimore police Det. Emmanuel Cabreja said the department has deployed the device, called Hailstorm, and similar technology about 4,300 times since 2007.

As the AP notes, the number of deployments admitted to here is the largest ever made public. This doesn't necessarily mean the rate of usage (more than once a day, on average) is out of the ordinary, however. Thanks to the very restrictive non-disclosure agreement the FBI forces law enforcement agencies to sign (while falsely claiming "the FCC made us do it!"), information on cell tower spoofers has very rarely been disclosed.

Det. Cabreja confirmed the ultra-restrictive terms of the FBI's NDA, which forbids law enforcement agencies from producing any information on Stingray devices, no matter who's asking for it.

Cabreja said under questioning from defense attorneys that he did not comply with a subpoena to bring the device to court because of a nondisclosure agreement between the Baltimore police and the Federal Bureau of Investigation.

“Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley.

“Yes,” Cabreja replied, saying he spoke with the FBI last week about the case.

There's nothing quite like hearing confirmation that two law enforcement agencies worked together to withhold information from a party being prosecuted by directly violating a court order. But it gets even better. The Baltimore PD's NDA was made public, and it shows the State's Attorney's office signing off on withholding Stingray information from judges and defendants, as well as agreeing to toss cases if exposure seems unavoidable. In contrast, the Erie County Sheriff's Department's agreement obtained by the NYCLU only contained signatures from law enforcement officials.

The courts -- at least in Baltimore -- seem to be tiring of this secrecy. Baltimore judge Barry Williams has previously questioned the Baltimore PD's citation of its non-disclosure agreement with the FBI, with one memorably pointing out that the PD "doesn't have a non-disclosure agreement with this court." Unfortunately, if the Baltimore PD prioritizes its NDA over its obligation to obey court orders and turn over requested evidence, then it does actually have an NDA "with the court," albeit one the court never agreed to. If the FBI says Stingray info isn't going to be turned over -- no matter who's asking for it -- that information will remain hidden, even if it means tossing criminal cases.

Baltimore Police Stingray Non Disclosure Agreement (PDF)Baltimore Police Stingray Non Disclosure Agreement (Text)

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: baltimore, baltimore police, doj, fbi, imsi catcher, nda, secrecy, stingray, surveillance, transparency
Companies: harris corp.

39 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

avideogameplayer, 9 Apr 2015 @ 10:45am

Hopefully these judges will dismiss these cases with prejudice...

Why should law enforcement get another shot at someone when they're not willing to play by the rules?
[ link to this | view in thread ]
AricTheRed, 9 Apr 2015 @ 10:48am

It seems to me...
That some folks have been perpatrating some federal civil rights violations? and perhaps some federal obstruction of justice charges would be approriate?

If memory serves, the civil rights counts would carry a maximum sentence of 10 years in prison, and each count of obstruction of justice carries a maximum of 20 years in prison, and there is a $250,000 maximum fine on all three?

Sounds about right to me.
[ link to this | view in thread ]
Nathan F (profile), 9 Apr 2015 @ 10:48am

So the judge threw the entire book that pertains to contempt of court at that detective, police commissioner and states attorney right? Cause if the judge doesn't do more than slap them on the wrist they will continue doing it.
[ link to this | view in thread ]
Uriel-238 (profile), 9 Apr 2015 @ 10:49am

I wonder if a court can order another agency to seize BPD assets
Preferably the stingray devices, but start with their weapons and cruisers until they start producing oversight data.

One can dream of a brighter world, I guess.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 10:55am

I wonder how many cases have to be thrown out for suspected Stingray use, before state attorneys, prosecutors, and police become uncomfortable with the state of affairs and either stop using Stringrays, or start breaking "NDAs".
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 10:56am

With those usage numbers
With those usage numbers, the court should seriously consider that any suspect found with a cell phone was located inappropriately.
[ link to this | view in thread ]
Mason Wheeler (profile), 9 Apr 2015 @ 10:57am

“Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley.

“Yes,” Cabreja replied, saying he spoke with the FBI last week about the case.

This is the thing that mystifies me about all this.

An NDA is a contract. How can anyone--and particularly an expert whose professional specialty is the law--think that a contract between two specific parties can somehow trump a generally-applicable law? And more specifically, how can anyone think that a contract can trump obligations to a court, when a court's authority is obviously greater by the simple fact that a court has the power to declare a contract unenforceable?
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:04am

Re:
Ever hear of parallel construction?
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:05am

This looks like NDAs are higher than law.
Maybe we should start sticking some NDAs in common torrent programs.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:06am

Oversite? We don't need no stinking oversite.
Why hasn't the city of Baltimore legislative body pulled funding from the PD and AG office until they start obeying the laws and actually do their job of putting criminals through the penal system.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:07am

The leaders at the FBI involved with these NDAs should be sitting in jail. I hope one of these judges gets fed up enough to find them in contempt for the NDA and jails them until they agree to terminate it.
[ link to this | view in thread ]
Thrudd, 9 Apr 2015 @ 11:11am

NDA
Contempt of Court sounds about right but let's lay the charges against the stingray device's as well as any associated property like vans, black helicopters and the like. Oh oh oh, almost forgot, laying charges against the money's held by any of the people or departments involved.
All of course goes into custody of the court for summary liquidation or destruction as proceeds of crime.
[ link to this | view in thread ]
Groaker (profile), 9 Apr 2015 @ 11:15am

I had wondered why there was such a push a year or two ago to make it a crime to violate contractual terms of service, when at most it is a civil issue.

Perjury, conspiracy, Constitutional violations,wiretap violations, abuse under color of law, obstruction and whatever in a knowing and malicious manner. Who is going to be charged, jailed, fired or even given a ten minute time out?
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:17am

Re: Re:
Can we please start calling it what it really is? Evidence Laundering.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:19am

Re: Re:
Ever hear of the falsification of information because your actions, arguments, and justifications are too weak to hold up in court or are illegal?

(Fixed it for you.)
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:21am

Here's a concept.
The FBI is not part of the legislative branch so the FBI can't make law. Therefore violating an agreement such as an NDA be a civil offense not a criminal one and if the NDA is based on false pretenses wouldn't that in turn make the agreement automatically null and void?
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:26am

now is this because the FBI dont want anyone else to know that the Stingrays haven't produced the info wanted or is it because they dont want anyone else to know what info they managed to get, or not get, as the case may be?
[ link to this | view in thread ]
Uriel-238 (profile), 9 Apr 2015 @ 11:26am

So, when stingrays cost more convictions then they assist.
When our defense attorneys get practiced at raising doubts as to the validity of dark-sourced evidence, so that Stingray use becomes the expectation that the prosecution has to disprove, we may see a change in policy about them.

Or, the telecoms could update their systems to be resistant to spoofing, even if that means revising 2G and Edge protocols so that they're more secure.

What terrifies me is that somehow it's accepted by the courts that an NDA trumps the will of the court. Why doesn't Google's privacy policy trump the will of the court?

Are our courts now corporate sponsored that we dare not displease our new insect overlords?
[ link to this | view in thread ]
Uriel-238 (profile), 9 Apr 2015 @ 11:30am

At the point that, when there is no legal recourse, people get lynched...
When the common people decide to engage in vigilante justice when the official government fails to provide oversight or penalize those responsible for malfeasance, then, and only then will we start seeing some actual transparency and oversight.

I'm not saying this is right. I'm saying this is what it will take.
[ link to this | view in thread ]
Fuzzy Dunlop, 9 Apr 2015 @ 11:34am

Re: Re:
Nope, never heard of it.
[ link to this | view in thread ]
Uriel-238 (profile), 9 Apr 2015 @ 11:36am

Why are the precincts not defunded for failure to do their jobs?
Mostly because the common work-a-day schlubs still believe the beat officer is still there to serve and protect (and that without them street crime would be much worse).

Even though many precincts don't even bother with actual street crime, but are 100% focused on revenue enhancement activities, and the occasional crime against institutions that perpetuate mass poverty.

But the people still believe the cops serve them, and our media still portrays common police (even in Gotham) as mostly doing the right thing.
[ link to this | view in thread ]
PRMan, 9 Apr 2015 @ 11:37am

Re: It seems to me...
Or at least jail the officer until he produces it for "contempt of court".
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 11:48am

Re: Conspiracy
This shouldn't be just about getting cases thrown out. What's going on here is criminal. When the PDs agreed with the FBI to disregard court orders, that seems like a very blatant case of conspiracy to commit a crime. The agreement's in writing, for heaven's sakes! This should be an easy prosecution. (Oh wait, the prosecutors are probably participants in the agreements as well.)
[ link to this | view in thread ]
That One Guy (profile), 9 Apr 2015 @ 12:40pm

"It wasn't a request"
The judge could solve this really quick, they'd just be willing to do their job.

Judge: You are ordered to provide X information.
Detective: I'm afraid the NDA I signed means I cannot do that, as it overrules the law and court system.
Judge: Let me rephrase my statement. You are ordered to provide X information, or you will be charged with contempt of court, for which you will then be sentenced to sit in a cell until you comply. In light of this, would you like to rephrase your statement in response, or shall I call for someone to take you to your cell?
[ link to this | view in thread ]
Uriel-238 (profile), 9 Apr 2015 @ 1:07pm

Re: "It wasn't a request"
I suspect that is exactly how it would go down if the detective wasn't an agent of the DoJ.

Judge: You are ordered to provide X information.
Google: I'm afraid our privacy policy prevents us from doing that or even searching the database to find it.
Judge: Let me rephrase my statement. You are ordered to provide X information, or you will be charged with contempt of court...
[ link to this | view in thread ]
FamilyManFirst (profile), 9 Apr 2015 @ 1:08pm

Re: "It wasn't a request"
I keep wondering that, myself. Why have the courts been so obliging to these blatant rejections of their authority?
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 1:52pm

There's a cost for this in blood
While the BPD was doing all this, and while cases against seriously violent people were being dismissed, there's been a corresponding decrease in the effort applied to preventing street crime.

That has consequences. There have been 56 homicides in the first 99 days of 2015 in Baltimore. (And day 99 isn't over yet.) The overall number of shootings and stabbings is considerably higher and some of the victims survived only because Maryland Shock Trauma is one of the best in the country.

Every minute and every dollar spent fiddling with these high-tech toys was a minute and a dollar that wasn't spent doing the kind of hard work necessary to keep the streets safe. The bloodstained sidewalks are mute testimony to that.
[ link to this | view in thread ]
That One Guy (profile), 9 Apr 2015 @ 2:15pm

Re: There's a cost for this in blood
Simple, though disgusting, probable reason: Setting up a Stingray device, and scooping up all the data you can grab, doesn't put any cops in danger. Actually patrolling the streets, and either stopping or acting as a deterrent to street crime? That can actually put a cop at risk, and they didn't sign up to put their safety on the line.
[ link to this | view in thread ]
Spaceman Spiff (profile), 9 Apr 2015 @ 3:50pm

Does this mean?
Does this mean that the FBI (and Erik Holder) can be held in contempt of court? Wouldn't that be a treat!
[ link to this | view in thread ]
Padpaw (profile), 9 Apr 2015 @ 4:51pm

It is rather simple for them to justify it. Every American citizen that is not associated with the government or law enforcement is a criminal and will be treated as the enemy.

Doesn't the war on terror make every person a terrorist according to nonsensical requirements of what makes a person a terrorist by the US government. Like having over 7 days of food congrats you are a terrorist to the DHS.
[ link to this | view in thread ]
Padpaw (profile), 9 Apr 2015 @ 4:53pm

Re: Why are the precincts not defunded for failure to do their jobs?
Funny and sad enough most people I talk to about dirty cops say I should trust all police simply because they are police and cannot be criminals.

In their minds it is impossible for any cop to not be an honest upstanding citizen
[ link to this | view in thread ]
Padpaw (profile), 9 Apr 2015 @ 4:57pm

Re:
When the people in question view themselves as above the laws they enforce. Then the laws have no meaning to them, and are ignored. It is just lovely that in this case we are entrusting people with weapons to enforce laws they don't believe apply to themselves.
[ link to this | view in thread ]
Drunkard, 9 Apr 2015 @ 6:12pm

Re: Re: Why are the precincts not defunded for failure to do their jobs?
Not only do they not violate any laws but they also uphold the highest moral standards.
[ link to this | view in thread ]
Anonymous Coward, 9 Apr 2015 @ 8:56pm

I have a Non Disclosure Agreement that says I'm above the law. Read it and weep!
[ link to this | view in thread ]
That One Guy (profile), 10 Apr 2015 @ 1:18am

Re:
If we can read it, it's not much of an NDA.
[ link to this | view in thread ]
David, 10 Apr 2015 @ 1:50am

Re: I wonder if a court can order another agency to seize BPD assets
The NDAs make clear that Stingray devices are not intended for legal use.

So they should be treated like heroine, narcotics and machine guns a department acquired for "law enforcement purposes" and tries to keep out of oversight.
[ link to this | view in thread ]
David, 10 Apr 2015 @ 3:36am

Re:
If Hitler had just put an NDA on German weapons, he could have led WWII without anybody allowed to figure out enough to mount a defense.

Admittedly he was reasonably successful at keeping the Holocaust under wraps.
[ link to this | view in thread ]
Anonymous Coward, 10 Apr 2015 @ 7:47am

racketeering
noun fraud, swindling, criminal activity, sharp practice He was indicted on racketeering charges.
Collins Thesaurus of the English Language – Complete and Unabridged 2nd Edition. 2002 © HarperCollins Publishers 1995, 2002
[ link to this | view in thread ]
John Fenderson (profile), 10 Apr 2015 @ 8:20am

Re: Re: Re: Why are the precincts not defunded for failure to do their jobs?
Which is even crazier. I know a lot of cops, and as a group their moral standards aren't any different than any other random group.
[ link to this | view in thread ]