Milwaukee PD Hid Stingray Usage From Judges, Defendants And Now Congress Members Want Answers From The FBI
from the the-huge-secret-that-isn't dept
More evidence of Stingray obfuscation has been uncovered in Milwaukee. What appeared at first to be a bog standard court order for tracking of a suspect using a cell phone provider's own "network equipment" actually appears to be something else. The ACLU was already involved in this case, arguing that such tracking by cell phone providers only be available with a warrant. But as it dug into the specifics, it became obvious the tracking had not been performed by the cell provider.
As we read through documentation from the case, however, we began to suspect that something else was going on. It appears that police secretly used a cell site simulator, also known as a Stingray, to track the phone, but successfully concealed that fact from the defense and the court.Like every other law enforcement agency with a Stingray device in its possession, the Milwaukee PD had signed a nondisclosure agreement with the FBI. This "allowed" it to withhold the information from courts and defendants. But cracks in the NDA appeared and a prolific FOIA filer was able to pry loose documents detailing MPD's use of cell tower spoofers.
Our suspicion was first raised because police initially did not disclose to the defendant that they had located him by tracking his phone, only revealing it at an evidentiary hearing. In reports prepared after the defendant’s arrest, police officers used oddly vague language to explain how they located him: one officer merely wrote that law enforcement had “obtained information” about the defendant’s location; another said that police “obtained information from an unknown source” about where he was. This sounded to us a lot like the kind of intentionally ambiguous language used by police across the country to hide their Stingray use.
Last fall, privacy activist Mike Katz-Lacabe obtained a list of 579 investigations in which the Milwaukee Police Department used Stingrays. (Here are Mike’s public records request and MPD’s response letter). That previously unpublicized list includes an entry for a case that matches the date and description of this one: an October 28, 2013, apprehension of a “fugitive” “related to [an] FBI roundup.”The ACLU is now arguing for suppression of the evidence obtained with the Stingray. That isn't local law enforcement's only problem, however. The ACLU's exposure of this secret Stingray use (along with the Milwaukee Journal-Sentinel's coverage) has attracted the attention of people in a better position to demand answers from the FBI: Reps. Jim Sensenbrenner and Sheila Jackson.
In a letter sent to James Comey (who kind of has a lot on his plate already, tbh), the Congress members demand to know why the FBI is actively hiding information about these tracking devices from the public.
The FBI’s stated reason for secrecy was that disclosing the existence of the capabilities may allow “the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement.” But certainly not lost on the FBI was the fact that secrecy shields the technology from debate and inevitable controversy. Courts could not review its constitutionality. The public could not debate the merits and costs of the technology and what limitations might be appropriate. While this type of secrecy may be appropriate in the national security context, it is entirely inappropriate in the context of law enforcement where citizens have the constitutional right to challenge the government’s evidence against themThe letter acknowledges that the FBI has recently backed away from supporting its own NDAs. The FBI's last statement on the matter basically said the NDAs should not be read as saying exactly what they say: that information about Stingray usage should be hidden from everyone, if possible. It also expressed mild disbelief that the agreements were being taken so literally. The disingenuous and self-serving nature of this walkback is highlighted in the letter.
We are not prejudging the outcome of the debate over the use of Stingray technology, but we categorically denounce the use of nondisclosure agreements that limit the ability of the public and of courts to debate the merits of the technology and to implement limits they may deem appropriate.
This, however, is at odds with the explicit language of the NDA which precludes disclosure to the public in any manner “including but not limited to: in press releases, in court documents, during judicial hearings, or during other public forums or proceedings.” The agreement, in fact, goes much further and states that the Milwaukee Police Department should seek FBI permission before responding to court ordered disclosures and should be prepared to dismiss cases at the FBI’s request if necessary to protect against disclosure.The FBI has until March 25th to answer the following questions:
• Does the FBI consider state and local law enforcement to be bound by the NDAs related to the use of cell-site simulators?The answers should be illuminating -- if the public is actually allowed to see the responses. The FBI may still try to claim this super-secret technology that everyone knows about can't be discussed in an open forum. And I'm certain the agency will claim it would not condone perjury even though its NDAs strongly hint this would be preferable to exposing "sensitive" law enforcement methods.
• Has the FBI ever requested that a law enforcement agency dismiss a case to maintain the secrecy of law enforcement technology?
• How many NDAs has the FBI signed with state and local law enforcement agencies regarding cell-site simulators?
• Are there other technologies for which the FBI demands state and local law enforcement sign an NDA?
• Does the FBI continue to believe that NDAs are appropriate?
• Would the FBI ever condone perjury to Congress or judges to protect the existence of technology?
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Filed Under: congress, courts, evidence, fbi, imsi catcher, judges, milwaukee, police, stingray
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Redundant question
Given you've got various police agencies doing everything they can to avoid saying the magic word 'Stingray' to courts, with the FBI telling them to do anything they can to avoid doing so, yeah, I'd say it's pretty clear the FBI has no problem lying about the tech they use and requiring that others do the same.
Not that they would ever admit that of course, as that requires that little thing called 'honesty', something the FBI finds extremely difficult to manage.
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Re: Redundant question
That one's easy: no.
Perjury to Congress is reserved for covering up crimes by Law Enforcement. The existence of a Stingray device is not a crime and where it has been acquired with internal funds (namely by street robbery at gun point, also known as civil forfeiture), Congress has no business probing into the possessions of Police Departments.
Now actually using the Stingray without an explicit judicial warrant is illegal, so committing perjury to cover up use of the device is fine. After all, police officers might go to jail otherwise and that would seriously hurt the upkeep of law by both clogging prison space as well as diminuishing police forces, in addition to making enforcement more difficult.
People might get hurt. Terrorists and child molesters might recklessly walk the streets unencumbered.
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Re: Re: Redundant question
it already happened.
hint: Roswell, New Mexico, 1947 and all the circus after that.
The question is not limited to stingray/cell tower simulator use, is about any technology in general.
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Re: Re: Re: Redundant question
Bigfoot. You left out Bigfoot.
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Re: Re: Redundant question
Uhm, no, actually. The act of perjury is itself a crime. And, given that it's usually a prosecutor talking to the court, then it's the prosecutor who's perjuring [him/her]self, in talking about what the cops did. And that constitutes conspiracy after the fact.
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Re: Re: Re: Redundant question
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Re: Re: Re: Re: Redundant question
It's not until the individual who actually filed the parallel construction report gets questioned at the stand that perjury happens -- and this is why the FBI suggests the cases be dropped if that individual looks like they will be called to the stand.
Since in most cases, nobody would know/think to ask this individual to testify, the source usually slips under the radar.
And as a result, the FBI isn't instructing anyone to perjure themselves; lie, yes -- but as soon as it comes to testifying before the court/congress, they tell them to run away.
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Re: Re: Re: Redundant question
That much is true.
> And, given that it's usually a prosecutor talking to the court, then it's the prosecutor who's perjuring [him/her]self, in talking about what the cops did.
False. The prosecutor is NOT under oath, and cannot commit perjury. The prosecutor must call witnesses who will explain (under oath) to the judge and jury what happened. Police officers spend a not-negligible amount of their time testifying in court.
> And that constitutes conspiracy after the fact.
No, it doesn't. For one thing, prosecutors have a thing called "absolute immunity". It means that they can't be prosecuted (or sued) for doing their job (prosecuting cases in court), not even if they lie, cheat, and break every rule. There are a FEW specialized exceptions (but VERY few) and I seriously doubt that "conspiring with the police" would qualify.
I'm not saying this is a GOOD thing, but it is how the US legal system works today.
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Re: Re: Re: Re: Redundant question
They are ALSO an attorney and can therefore NEVER commit perjury.
They CAN commit professional misconduct however.
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Re: Redundant question
Laws are for the serfs not the "elites"
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Re: Redundant question
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Our secret informants you can not know about, question, or challenge have said you are guilty. At what point are we going to admit that we are on the road to a police state?
This tech is so awesome to dare to mention its use results in horrible things, even cases being abandoned to protect disclosure of it. They are willing to hide how they are getting evidence, while not really 'lying' to the courts this is deception. If a defendant produced evidence using the same talking around the truth, courts would roast them. Why do you accept those charged with upholding the law doing it?
People need to start being fired for allowing this to happen, the entire program needs to be disclosed, and the courts need to issue guidance about this invasive secret tech being used. Pretending it isn't violating a whole slew of peoples rights because we don't mention it doesn't mean it isn't happening.
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Oh you sweet naive boy, our GPS just dinged and told us that we have now arrived at our destination.
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Re:
The higher instance responsible would be "the people" and they are far too complacent. They nominate and elect the most unsuitable people for putting a stop to the government's unconstitutional and illegal power grabs.
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Re: Re:
All it takes is for one stakeholder to realize they can achieve short term gain by turning on the others, and we have the system working for us again. And since that's precisely the kind of behaviour that gets people elected, this should be possible. We just have to dangle the right carrots in front of the right individuals, and hope they'll continue to be short sighted.
This is also why it doesn't work going through senate/congress -- there are too many of them to get a *change* made -- it has to work the other way around.
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Re:
Because one is a contract and the other (according to some) are just suggestions?
/s
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Perjury?
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Re: Perjury?
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Re: Re: Perjury?
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Re: Re: Perjury?
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Re: Perjury?
tax evasion, perjury is…probably the most underprosecuted crime in America... You can walk into court, take the oath, like up a storm, and not have to worry about being punished for it."
Elsewhere:
Federal District Judge Marvin H. Shoob remarks that “people would be shocked if it were truly known how many witnesses lied under oath in a court of law every day.”Milwaukee prosecutor E. Michael McCann, former chair of the ABA Section of Criminal Justice, provides the vivid metaphor that “if perjury were water, the people in civil court would be drowning.”
Wisconsin Statue 968.01 lets you do something about it beyond bitching on an internet forum...
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Re: Re: Perjury?
That's questionable. Perhaps you should have read 968.02.
"Except as otherwise provided in this section, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed."
It is true that "If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing", but according to case law (the Wisconsin Supreme Court case "State ex rel. Kalal v. Circuit Court"), this clause "may be invoked only when a complainant can demonstrate that the district attorney has in fact refused to charge, or is unavailable to do so" and "A period of inaction may well indicate an ongoing investigation or a pending charging decision by the district attorney; inaction alone will ordinarily not support an inference of a refusal to prosecute."
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Re: Re: Re: Perjury?
But at least the DA had to *DO* something.
My guess is you are not in WI, nor have you ever went before a Judge in WI to ask 'em to simply witness the signing of the document per 968.01. I have. And they treat it like you walked in with Plutonium.
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Call it whatever
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Scott Pelley: There is no surveillance without court order?
James Comey: By the FBI? No. We don’t do electronic surveillance without a court order.
Scott Pelley: You know that some people are going to roll their eyes when they hear that?
James Comey: Yeah, but we cannot read your emails or listen to your calls without going to a federal judge, making a showing of probable cause that you are a terrorist, an agent of a foreign power, or a serious criminal of some sort, and get permission for a limited period of time to intercept those communications. It is an extremely burdensome process. And I like it that way.
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Re:
I have bad news for you. All those "like" buttons you clicked mean something different from what you thought. "like" is not just an alternative spelling of "lie".
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People like this are dangerous to a free country
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This is what it has finally come to...
It is so bad that I hope for them to do something incredibly distasteful and stupid that will have some bad consequences, just so that someone who is in the position to do something, will actually take notice.
It is kind of funny that if anything will bring Law enforcement under control, it will probably be because they are too greedy for fast power over the people.
Like we have seen: if they take it slow then the people will praise Law enforcement for holding a gun to their head.
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countermeasures
Are there reasonable countermeasures to mitigate stingray surveillance? If so, why aren't bad guys doing that all the time? Or is the countermeasure essentially "don't communicate by cell phone."?
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Re: countermeasures
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Re: Re: countermeasures
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Re: countermeasures
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Re: countermeasures
the idea of "burner phones" it would seem based on others reporting.
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Re: countermeasures
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Because they rarely arrest and prosecute themselves.
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Question for the Lawyers in the crowd...
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If you think there is a crime here:
968.01(2) The complaint is a written statement of the essential facts constituting the offense charged. A person may make a complaint on information and belief. Except as provided in sub. (3) or (4), the complaint shall be made upon oath before a district attorney or judge as provided in this chapter.
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What's the big secret?
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Re: What's the big secret?
Because it is doing much more that they are admitting, such as maybe sweeping up all the conversations that go through the device, along with the location data of all intercepted phones.
While the public may be O.K. with stingray being used to track a criminal, they will naturally get upset if they are told that they are being tracked as well.
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take away any mention of the police from this article and you would think it was about the mob.
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