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

Tue, Mar 22nd 2016 12:24am — Tim Cushing

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.

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.

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.

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 them

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.

The 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.

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?
• 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?

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.

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Filed Under: congress, courts, evidence, fbi, imsi catcher, judges, milwaukee, police, stingray

48 Comments

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That One Guy (profile), 22 Mar 2016 @ 12:33am

Redundant question
Would the FBI ever condone perjury to Congress or judges to protect the existence of technology?

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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That Anonymous Coward (profile), 22 Mar 2016 @ 1:00am

Because in a land of secret courts & secret laws we never expected them to bleed into the real courts?

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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David, 22 Mar 2016 @ 1:54am

Re: Redundant question
Would the FBI ever condone perjury to Congress or judges to protect the existence of technology?

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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Agonistes (profile), 22 Mar 2016 @ 2:29am

We've pretty much passed the point where there could have been any possibility whatsoever that the government could be rehabilitated or any amount of trust put into it. This state of things is becoming very, very ominous.
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Anonymous Coward, 22 Mar 2016 @ 2:34am

Re: Re: Redundant question
• Would the FBI ever condone perjury to Congress or judges to protect the existence of technology?

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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David, 22 Mar 2016 @ 2:45am

Re:
Well, it's a coverup corporate culture. It's essentially the same as the VW emissions scandal, just on a much larger and much more dangerous scale, and there is absolutely no end in sight as there is no higher instance to put a stop to it.

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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Anonymous Coward, 22 Mar 2016 @ 4:35am

Since when have NDAs become more binding and powerful than the Constitution?
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Anonymous Coward, 22 Mar 2016 @ 4:35am

Re: Re: Re: Redundant question
hint: Roswell, New Mexico, 1947 and all the circus after that.

Bigfoot. You left out Bigfoot.
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Anonymous Coward, 22 Mar 2016 @ 4:42am

Perjury?
No. They would not condone perjury. They would only provide the LEAST untruthful answer possible...
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That One Guy (profile), 22 Mar 2016 @ 5:03am

Re: Perjury?
Because it's not lying when you're just not telling the truth after all.
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Jim, 22 Mar 2016 @ 5:39am

Call it whatever
Perjury don't sound as bad, as prosecutors not telling the whole story in their prosecution. The many people in jails for not having a good defense, that's been since the courts have been invented. What make this any different then then? Why should the prosecutors fib? After all, they are supposed to have the whole story. But, this shows, all the story may be, is good press. That good press, may be just to get reappointed to a paycheck. Somehow, that don't sound right.
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Groaker (profile), 22 Mar 2016 @ 6:23am

How many likes can be counted in the following brief exchange?

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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Anonymous Coward, 22 Mar 2016 @ 6:24am

Re:
Since when have NDAs become more binding and powerful than the Constitution?

Because one is a contract and the other (according to some) are just suggestions?

/s
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Quiet Lurcker, 22 Mar 2016 @ 6:48am

Re: Re: Redundant question
>>Now actually using the Stingray without an explicit judicial warrant is illegal, so committing perjury to cover up use of the device is fine.

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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David, 22 Mar 2016 @ 7:51am

Re: Re: Re: Redundant question
Frankly, I cannot blame the prosecutors. You can tell an American anything you want as long as you don't say "/s" and he'll gobble it up without second thought, as if Jesus were talking.
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Anonymous Coward, 22 Mar 2016 @ 7:51am

People like this are dangerous to a free country
What is it the government always tells the sheeple? If you have nothing to hide, you have nothing to fear? Shouldn't that apply to the government as well? I am sure these people believe they are saving the world (or at least this country) and doing it by any means is ok as it is the end result that matters. But it is people like this that are the most dangerous to a free country. If you can find it within yourself to disobey laws, hide things from the courts and overseers, then there really is no limit to what you would do if you thought it was for the good.
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David, 22 Mar 2016 @ 7:56am

Re: Re: Perjury?
Reality is delusional, so her "truths" need some serious editing before being in acceptable agreement with the narrative.
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Anonymous Coward, 22 Mar 2016 @ 8:10am

This is what it has finally come to...
that the only thing we can hope for is for law enforcement to do something so extreme as to wake the slumbering officials. I am not even sure that it is enough with cases like this.
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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Anonymous Coward, 22 Mar 2016 @ 8:27am

countermeasures
[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."]

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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Anonymous Coward, 22 Mar 2016 @ 8:31am

Again, why are these criminals not in jail?
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That One Guy (profile), 22 Mar 2016 @ 8:34am

Re: countermeasures
Other than 'not use a phone' as you noted? Not that I'm aware of.
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Anonymous Anonymous Coward, 22 Mar 2016 @ 9:28am

Re: countermeasures
Faraday Bags, removing the battery from the phone when not in use, leave the phone at home, and what That One Guy said.
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Anonymous Anonymous Coward, 22 Mar 2016 @ 9:34am

Question for the Lawyers in the crowd...
What would happen if every defense lawyer opened cross examination of every law enforcement witness with "Was a stingray or stingray like device used in any part of this investigation?"? That is, besides pissing the prosecution, the FBI, the US Marshall’s service, local LEO's, etc. off.
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Anonymous Coward, 22 Mar 2016 @ 9:47am

If you think there is a crime here:
Walk into a Milwaukee Courtroom and present a criminal complaint. Anyone can. Demand the Judge witness your oath.

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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Anon, 22 Mar 2016 @ 9:49am

What's the big secret?
I'm not sure what the FBI is trying to hide. Anyone who watches ANY TV crime show in the last 10 years knows that their cell phone tells the police exactly where they are. Why would the ability for the police to bypass carrier equipment to get the same information be such a Hyuuuuge secret?
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Anonymous Coward, 22 Mar 2016 @ 10:00am

Re: Perjury?
From Milwaukee WI - the ABA has an article - The Lies Have It by Mark Curriden in May 1995. "Outside of income
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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Anonymous Coward, 22 Mar 2016 @ 10:02am

Re: countermeasures
Are there reasonable countermeasures

the idea of "burner phones" it would seem based on others reporting.
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Anonymous Coward, 22 Mar 2016 @ 10:40am

Re: countermeasures
If the government doesn't know that your phone is your phone, they can't track it. So I guess using a burner phone would be one way to mitigate it. Of course, if they know where you live, they can stake out your house with a stingray and find out what phones are there.
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Anonymous Coward, 22 Mar 2016 @ 10:48am

Re:
Again, why are these criminals not in jail?

Because they rarely arrest and prosecute themselves.
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Anonymous Coward, 22 Mar 2016 @ 11:08am

Re: What's the big secret?
Why would the ability for the police to bypass carrier equipment to get the same information be such a Hyuuuuge 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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Ima Dork (profile), 22 Mar 2016 @ 11:34am

Re: Re: countermeasures
There are apps, usually referred to as IMSI-catcher-detectors. They often require a rooted or jail broken phone. And, it's unclear how successful they are. But they claim to be able to tell when your phone is being spoofed by an IMSI catcher such as a Stingray, as well as to detect when you are receiving possibly malicious SMS messages that are attempting to manipulate your phone. A quick search of the keywords "IMSI", "catcher", and "detector" will bring up a good number of sites for you to peruse.
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Anonymous Coward, 22 Mar 2016 @ 11:56am

Re: Re: Perjury?
"Wisconsin Statue 968.01 lets you do something about it beyond bitching on an internet forum..."

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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Anonymous Coward, 22 Mar 2016 @ 12:53pm

Re: Re: Re: Re: Redundant question
Well, the prosecutor is making that statement in good faith. They probably have no idea where the information actually came from. When they ask the PD (not under oath), they are told the tale of parallel construction. They then present this to the court under oath as what they know.

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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Anonymous Coward, 22 Mar 2016 @ 12:57pm

Re: Re:
Ah; but since they nominate and elect people who are opposed to each other, they can actually use the multiple factions to help clean up each other's acts -- as long as we the people can prevent collusion.

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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Anonymous Coward, 22 Mar 2016 @ 1:38pm

Re: Re: Perjury?
It's not perjury when you've been protected from knowing the truth, even if you suspect that what you're saying isn't actually the truth. This is how they get around it. And it takes too long for the court to fact check every source statement. But I bet they're going to be doing that a lot more on anything that relates to location finding or cell records, where the PD is being overly vague.
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Daniel Audy (profile), 22 Mar 2016 @ 4:44pm

Re:
On the road to a police state!?!

Oh you sweet naive boy, our GPS just dinged and told us that we have now arrived at our destination.
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mcherm (profile), 22 Mar 2016 @ 10:21pm

Re: Re: Re: Redundant question
> The act of perjury is itself a crime.

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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Anonymous Coward, 23 Mar 2016 @ 5:46am

A group that regularly and openly flaunts breaking laws.

take away any mention of the police from this article and you would think it was about the mob.
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Anonymous Coward, 23 Mar 2016 @ 8:17am

Re: Redundant question
If the head of the DoJ can commit perjury and not be held accountable why not the FBI and every other government agency.

Laws are for the serfs not the "elites"
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Anonymous Coward, 23 Mar 2016 @ 8:20am

Re:
going to take violent revolution before the government start regulating themselves as a whole
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Anonymous Coward, 23 Mar 2016 @ 8:21am

Re:
That's easy when you have a government that ignores any laws that they don't like. When that has been happening in successive governments for decades then those constitutional rights don't exist as far as the law keepers are concerned
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nasch (profile), 23 Mar 2016 @ 8:53am

Re: Redundant question
If they don't mind lying about the Stingrays, they certainly wouldn't mind lying about whether they condone the lying.
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David, 23 Mar 2016 @ 9:02am

Re: Re:
Just click your heels together three times and say "Sir! Yes! Sir!".
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David, 23 Mar 2016 @ 9:03am

Re:
There are repercussions when the government violates an NDA.
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David, 23 Mar 2016 @ 9:06am

Re:
How many likes can be counted in the following brief exchange?

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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gamesmith94134 (profile), 23 Mar 2016 @ 10:26am

It has the same problem as the prism for NSA; it may not an abuse by the NSA; except it is the property of NSA, that shares by its members or others, and NSA has no control on source of the abuse. Seriously, I still doubt f there is another me who took charge of my bank account which that bank subjectively closed without disclosure of the funds missing. Could it be seize and desist to fund their FBI or State department? I wonder.........Don't ask don't tell intelligently, or get yourself killed. It goes back to human trafficker Justice Department or Justice Thomas' question that went to the Congress.
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Anonymous Coward, 23 Mar 2016 @ 5:40pm

Re: Re: Re: Perjury?
Ahhh, but 968.01 is the 1st step. And yea, the DA can take the witnessed document and throw it in the trash.

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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Anonymous Coward, 25 Mar 2016 @ 12:22pm

Re: Re: Re: Re: Redundant question
The prosecutor is NOT under oath, and cannot commit perjury

They are ALSO an attorney and can therefore NEVER commit perjury.

They CAN commit professional misconduct however.
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