Stingray Memo From FBI To Oklahoma Law Enforcement Tells PD To Engage In Parallel Construction
from the fake-it-til-you-make-it dept
The concept of "checks and balances" kind of takes a beating when one branch of the government says it's ok to lie to another branch. We've already seen the FBI tell law enforcement agencies -- through extensive NDAs it makes them sign before they can deploy cell site simulators -- that it's better to let suspected criminals walk away from charges than risk allowing details on Stingray devices to make their way into the public domain via submitted evidence.
Many law enforcement agencies appear to be doing exactly that. More than one agency has misled judges with applications for pen register orders and requests for cell site location data -- neither of which provide details on the technology actually being used.
Another memo from the FBI shows the federal agency directly instructing a local law enforcement agency to engage in parallel construction. The memo, obtained by Oklahoma Watch, explicitly spells out what is supposed to happen if cell site simulator use is part of the evidence chain. (h/t Nate Wessler)
Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials. This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment.The problem is that this sort of "lead" often leads directly to search warrants of residences where people are located. The Oklahoma City PD is being told to obtain other non-Stingray-related data that could plausibly explain how it managed to located Subject X at Location Y. Officers won't be telling magistrate judges when seeking pen register orders or subpoenas for cell location info. And officers won't be telling defendants or their representation how they managed to be in the right place at the right time with a search warrant.
The memo also notes that the FBI "will use all appropriate legal means" to prevent Stingray use from being uncovered in discovery requests. Apparently, "all appropriate legal means" covers parallel construction.
What sets this apart from the FBI NDAs we've covered here previously is that this memo is limited to the local law enforcement's borrowing of FBI equipment to locate suspects. With the FBI still in control of the device, it's obviously going to be that much more concerned with controlling the narrative.
Clifton Adcock of Oklahoma Watch notes that local law enforcement appears to be using Stingray devices but covering it up through pen register orders. In one case, this has led to a very suspect request from the Oklahoma City PD, suggesting it had borrowed an FBI cell site simulator to locate the defendant.
In one of those cases, a defense attorney, Douglas Parr of Oklahoma City, said he believes a cell site simulator was used to collect his client’s phone data. The client is charged with drug trafficking. During a hearing in Oklahoma County District Court in September 2015, Parr asked an Oklahoma City police detective whether a simulator had been used. The detective, who had requested the order, testified that to his knowledge such a cell site simulator had not been used.According to the FBI's new rules for Stingray use, warrants must be sought and provide explicit details about the technology being used -- including the facts that Stingrays search every phone in the area while trying to locate devices and that local service may be disrupted during deployments. The DOJ's ruleset arrived a few months after this particular Memorandum of Understanding was signed with the Oklahoma City PD. One would hope a revised version is on the way, if not already in the hands of Oklahoma law enforcement -- one that does a better job of reflecting the DOJ's current stance on warrants and information dissemination.
Testimony in the case shows the officer did not file for a trap and trace order with the court until the day he testified in September – more than a year after he conducted the surveillance.
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: 4th amendment, evidence, imsi catcher, oklahoma, parallel construction, stingray
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
It's taking tainted evidence that isn't legal and coming up with a 'legal' source so it can be used. That same activity used financially is considered and referred to as 'money laundering', so 'evidence laundering' not 'parallel construction' is the correct term.
[ link to this | view in thread ]
So?
What is the penalty for overthrowing the rightful government? Promotion and paid vacation? A bit of palm grease?
Something like that, though the details may differ.
[ link to this | view in thread ]
Re: So?
[ link to this | view in thread ]
Then by implication, stingray information would be inadmissible in that same court.
And we wonder the feds and cops both don't want to admit to using singray equipment.
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
Change to reflect how eager some judges are to bend over backwards in the name of giving the police and government anything they want.
Stingray data should be seen and treated as completely incompatible with a warrant requirement, and therefore illegal to gather or use, for exactly the reason you list, but sadly sanity does not always rule in the courts, especially when the 'National Security' or 'Because bad people' excuses are trotted out.
[ link to this | view in thread ]
Re: Re: [Call It What It Is]
[ link to this | view in thread ]
Re:
It's a shame that illegitimate uses are so easy to get away with, but the police aren't really held accountable.
[ link to this | view in thread ]
Re: Re: Re: [Call It What It Is]
At minimum, it seems legit under qualified immunity, absolute immunity, good faith exception, secret law, national security, law-is-as-law-does precedent.
[ link to this | view in thread ]
Facing Accusers
More's the pity such dishonest tactics were ever deemed "legitimate." We have only ourselves to blame that we permitted a culture of confidential sources and anonymous testimony to flourish.
[ link to this | view in thread ]
Re: Re:
Uh no? Due process requires the defendant and the court to know about the source of evidence and the motivation for searches. If you just swallow "I just happened to be around for reasons" every time, you get a surveillance state running wild. Undisclosed sources are a very serious problem for due process that needs to be weighed very seriously and be open to very critical looks by defense and court.
"Parallel construction" ducks the necessary extra consideration by the court for undertakings that are very sensitive for proper finding of justice. It can never be legitimate.
Either you find justice in court, or you can save yourself the trouble altogether.
[ link to this | view in thread ]
Re: Re:
Legal systems just love to put on gold sashes and grow goatees the second they hit puberty.
[ link to this | view in thread ]
Gate Keeper. .
Having been given the keys to the kingdom, i can assure you that they are doing a hell of a lot more the just tracking phones.
And parallel construction is allowing the justice department to incarcerate people based on a completely fictional narrative and enabling law enforcement to hide the use of methods that would likely be deemed to be illegal in any court.
[ link to this | view in thread ]
"...parallel construction...would likely be deemed to be illegal in any court."
1) perjury - police are knowingly, intentionally lying in court at the behest of the FBI;
2) the FBI, law enforcement arm of the Executive Branch of the Federal Government, and its more local lackey LEOs are undermining the checks and balances of their respective Constitutionals by evading honest judicial review of Executive actions.
...treason much?
[ link to this | view in thread ]