Memphis Mayor Ushers In New Era Of Transparency By Refusing To Discuss City's Stingray Devices

from the I-have-several-terrible-reasons-for-not-going-so dept

Multiple Stingray nondisclosure agreements between law enforcement agencies and the FBI have been obtained by FOIA requesters. They all contain the same boilerplate stating that law enforcement officers must do everything up to swallowing their cyanide pills (let suspects walk, route FOIA requests through the FBI, engage in parallel construction, etc.) to prevent information about the technology from making its way into the hands of defendants, judges or peskily inquisitive members of the public.

These agreements are usually signed by a handful of law enforcement officers and FBI reps. The documents are never signed by city legislators or officials… which makes the claims of Memphis mayor Jim Strickland either ignorant, misleading, just plain old politican bullshit.

Memphis Mayor Jim Strickland confirmed Monday that the city is using cell phone eavesdropping technology with court approval, but said he couldn't discuss specifics.

[...]

"As a candidate for mayor, I did not know the legal restrictions that were in the Harris contract that my predecessor signed," he said. "But now, as mayor, I'm bound by those restrictions, and I cannot talk about how the cell-site simulators are used."

[...]

"I've been more open about this issue than my predecessor was, but there are restrictions that I have and I just can't break the law," he said.

I'm going to go with ignorant. An NDA is not "the law," even if it's a federal agency writing them up. At best, the FBI could possibly demand local law enforcement stop using the equipment, or threaten future federal funding, for violating the agreement. But the NDA does not prevent city representatives from talking about, no matter what law enforcement officials may have told them.

This is especially uncomfortable for Strickland, who ran his mayoral campaign on a platform of greater transparency -- specifically in regards to city's ownership and use of a Stingray device. Now that's he in a position to be more open about the law enforcement technology, he's chosen to stop talking about it.

Maybe Strickland should just stop talking about not talking about Stingrays. Everything he says in explanation makes him sound even more inept and clueless.

He said he doesn't know which court reviews Memphis Police's requests for cell-site simulators or if they are commonly used.

Great oversight there, chief.

"It's an important crime-fighting tool," he said.

Well, at least he appears to have given the talking points a once-over. That's something.

Asked whether the Fourth Amendment against unreasonable searches and seizures trumps the wording of the Harris contract, Strickland said he was following the law as his administration understood it.

"I'm not a Fourth Amendment lawyer," he said.

Obviously. And not much of a mayor either. Strickland seems to have not even read the same contract he claims he's bound by.

But would he have signed the contract if he'd been mayor? "I don't know. I'd have to really review that more," he said.

For a guy whose campaign explicitly mentioned Stingrays and the secrecy surrounding them, Strickland seems incredibly reluctant to be the disinfecting sunshine his supporters thought he would be. This doesn't make him a terrible person. But it does make him nothing more than a politician, with all the negatives that implies. And he's certainly no better than his predecessor, whom he attacked for doing the same thing he's doing here: not answering questions about secret law enforcement surveillance tech.

Filed Under: imsi catcher, jim strickland, memphis, nda, stingray

Tacoma Police Sued Over Heavily-Redacted Stingray Non-Disclosure Agreement

from the utilizing-the-'because-reasons'-public-records-exemption dept

Despite there being multiple copies of nearly-identical FBI/Stingray non-disclosure agreements in the public domain at this point, the Tacoma (WA) Police Department still refuses to provide FOIA requesters with an unredacted version of its own NDA.

In late 2014, the Tacoma Police Dept. handed Seattle's Phil Mocek a copy of its NDA, which, perhaps unsurprisingly, failed to disclose much about the non-disclosure agreement. The only things left unredacted were the two opening paragraphs of the agreement and the signatures at the end of it. In the middle was a solid wall of black ink.

A year later and nothing has changed. Other Stingray/FBI NDAs have been liberated via public records requests with very little redacted, but the Tacoma PD still won't provide Mocek with an unredacted version of its. So, Mocek has filed a lawsuit against the law enforcement agency.

The complaint, filed Sept. 17 in Pierce County Superior Court by a Seattle advocacy group, contends police and the city’s legal advisers wrongly cite an exemption in state public-records law that protects “specific investigative records.”

“The redacted information is not within this exemption, as it is not intelligence gathered, nor results of intelligence gathering, nor intelligence gathered in a specific case, and is not specific intelligence information,” the lawsuit states.

“The information in the agreement was created before there was any investigation at all conducted with the Stingray equipment, and before any specific intelligence information was gathered with it.”

All good points and all ones that can be easily verified by reading any of the other NDAs acquired by FOIA requesters. (Or just reading the Tacoma PD's in camera...) There are many reasons the Tacoma PD may not want to make this agreement public -- like the fact that it will drop cases rather than reveal Stingray use -- but none of those are valid reasons for withholding the bulk of the agreement.

The Tacoma PD hasn't singled out Mocek with its over-redaction. The Tacoma News Tribune requested the same document and received the same amount of black toner.

If the court finds in favor of Mocek and the Center for Open Policing (the other plaintiff in the suit), it could cost Tacoma's taxpayers a fair amount of cash.

The lawsuit filed against Tacoma police seeks cash penalties calculated by the number of days — 395 – that passed since Mocek, the Seattle activist, made his original request and later filed suit.

Under state law, courts can levy fines of up to $100 per day for wrongful withholding of records.

That's a lot of money to be shelling out for overly-redacting an agreement that's 99% boilerplate and already publicly-available thanks to other FOIA requests targeting other law enforcement agencies. While it's true the Tacoma PD applied its heavy redaction before the others were made public, it still has yet to release an unredacted version of its agreement..

It could be the black ink adds a layer of foreboding secrecy to the now-commonplace document. This undoubtedly assists the Tacoma PD in projecting its law enforcement mystique -- the same thing it used to keep its Stingray acquisition secret for more than five years. It wasn't until the PD needed to purchase an upgrade to its equipment that it finally was forced to deal with public scrutiny of its surveillance equipment. This new scrutiny included town legislators, who apparently approved the original purchase without question. Even now, with the PD's subterfuge exposed, legislators still believe the devices are being used to do good things, so why worry too much about all the obfuscation?

With a payout of $40,000 potentially on the line, the city might finally start asking its police force for a little more transparency and accountability.

Filed Under: imsi catcher, nda, non-disclosure, police, public records, stingray, tacoma, tacoma police

FBI Says It Has No Idea Why Law Enforcement Agencies Are Following The Terms Of Its Stingray Non-Disclosure Agreements

from the geez,-all-these-law-enforcers-take-our-agreement-so-LITERALLY dept

The FBI doesn't want to talk about its Stingray devices. It definitely doesn't want local law enforcement agencies talking about them. It forces any agency seeking to acquire one to sign a very restrictive non-disclosure agreement that stipulates -- among other things -- that as little information as possible on IMSI catchers makes its way into the public domain, which includes opposing counsel, prosecutors' offices and judges. The NDAs also instruct agencies to drop prosecutions if disclosure appears unavoidable. We know this because two NDAs have actually been obtained through Freedom of Information requests.

Now that Stingray usage and its attendant secrecy have been questioned by high-ranking DC legislators, the FBI is apparently feeling it should be a bit more proactive on the Stingray info front, presumably in hopes of heading off a more intrusive official inquiry. So, it has offered some "clarification" on its Stingray policies -- including the NDAs it makes local agencies sign.

The "clarification" seems to contradict a great deal of what the FBI's own NDAs require.

In a handful of criminal cases around the country, local police officers have testified in recent months that non-disclosure agreements with the FBI forbid them from acknowledging the use of secret cellphone-tracking devices. In some, prosecutors have settled cases rather than risk revealing, during court proceedings, sensitive details about the use of the devices.

The FBI, however, says such agreements do not prevent police from disclosing that they used such equipment, often called a StingRay. And only as a “last resort” would the FBI require state and local law enforcement agencies to drop criminal cases rather than sharing details of the devices’ use and “compromising the future use of the technique.”

To date, the bureau hasn’t invoked that provision, FBI spokesman Christopher Allen said in a statement to The Washington Post.

Let's compare the official statement with statements found in the agreement signed with a New York sheriff's department. The FBI says it's OK for law enforcement agencies to disclose Stingray usage in this "clarification." Here's the NDA:

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.

Hmm.

The FBI also denies it instructs agencies to toss cases rather than face possible exposure of Stingray usage. The NDA:

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.

This "clarification" is mostly bullshit, but it's all in the wordcraft. Everything the FBI stated here could be technically factual. It may have never explicitly directed agencies to dump cases or hide Stingray usage. Instead, it has relied on law enforcement agencies to follow the restrictions laid out in the NDAs -- something they've apparently done without ever bothering to approach the FBI for permission to turn over Stingray information during court cases.

To say these NDAs do not prevent law enforcement agencies from acknowledging the use of Stingray devices is only true insofar as the NDAs themselves are apparently just a pile on unenforceable words. The implication, however, is that these agencies will see their Stingray privileges yanked if they cough up information. Or, in the best case scenario, law enforcement officials will be sternly talked to by FBI officials for breaching the agreement.

As for the claim that the FBI has never directly instructed a law enforcement agency to toss a case rather than disclose information? That may be true, as well as being completely unverifiable. Agencies appear to be taking these agreements literally -- which is, of course, the point of ANY WRITTEN AGREEMENT -- and proactively dropping cases rather than risk breaching the terms of the NDA.

The FBI is washing its hands of the Stingray secrecy mess it created. This "clarification" is astoundingly disingenuous. The FBI forces agencies into these agreements and then steps back and says, "Hey. we didn't make them do this. They just interpreted the agreement to mean exactly what it says it means." It passes the buck to local cop shops, blaming them for not seeking the second opinions these agreements clearly discourage.

If this "clarification" is actually going to approach something akin to honesty, the FBI needs to immediately begin rescinding its non-disclosure agreements. It can't force agencies into restrictive agreements and then throw up its hands and claim it has no idea why these agencies might be interpreting these highly-restrictive NDAs so literally. This is a nasty, self-serving cheap shot wrapped in the guise of transparency.

Filed Under: fbi, imsi catchers, law enforcement, nda, non-disclosure agreements, stingray
Companies: harris corp.

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

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.

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

FCC Denies It Requires Law Enforcement To Sign A Non-Disclosure Agreement With The FBI Before Deploying Stingray Devices

from the another-'agency-said/agency-said'-story dept

We know the FBI doesn't want anyone talking about Stingray cellphone snooping systems. Local law enforcement officials aren't exactly forthcoming about this information either, citing either non-disclosure agreements or the US government itself as justifications for extensive cover-ups. Now, the FCC -- which has been sort of on the sideline during these non-discussions -- has waded into it, releasing a statement that directly contradicts a document released by the Tacoma Police regarding its use of Stingray devices.

Last month, Muckrock posted a heavily-redacted (everything but the two opening paragraphs) document it obtained from the Tacoma Police Department. In it, FBI Special Agent Laura Laughlin justified all the black ink that followed by name-dropping the FCC (the same agency Harris misled in order to have its devices approved). [pdf link]

We have been advised by Harris Corporation of the Tacoma Police Department's request for acquisition of certain wireless collection equipment/technology manufactured by Harris Corporation. 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 Federal Bureau of Investigation (FBI) to complete this non-disclosure agreement prior to the acquisition and use of the equipment/technology authorized by the FCC authorization.

The FCC is now saying that this is the first it's heard of being part of the Stingray secrecy process.

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.

But that's not entirely true. There is a requirement that almost exactly matches up with Agent Laughlin's claims -- one that Harris specifically requested and that the FCC granted.

As early as May 2010, Harris Corporation asked that the FCC put restrictions on law enforcement acquisition of its StingRay trackers, documents released to MuckRock by the FCC in response to another FOIA request show. Emails obtained by the ACLU of Northern California indicate that Harris made its request for licensing restrictions based on concerns from the FBI “over the proliferation of surreptitious law enforcement surveillance equipment.”

Here's the request:

To further support its request for confidentiality, Harris underscores the need for confidentiality by requesting that the Commission condition the Harris license applications as outlined below to prevent and address concerns regarding the proliferation of surreptitious law enforcement surveillance equipment:

(1) The marketing and sale of these devices shall be limited to federal/state/local public safety and law enforcement officials only; and,
(2) State and local law enforcement agencies must advance coordinate with the FBI the acquisition and use of the equipment authorized under this authorization.

This request was granted by the FCC in 2012.

There are only slight differences in what's being said by Laughlin and what was actually granted. The FCC requires (at Harris' request) that local law enforcement coordinate with the FBI before purchase and use of Stingray devices. Laughlin's statement appears to indicate that the FCC requires the signing of an NDA, but that appears to be the FBI's own inserted stipulation. Nothing explicitly states that the lack of an NDA means no Stingray purchase, at least not as far as the FCC is concerned. But it may keep law enforcement agencies from getting the FBI's go-ahead.

So, is the FCC the "good guy" in this Stingray mess? Probably not, or at least not as blameless as it would first appear. Chris Soghoian, the ACLU's principal technologist, points out that the FCC has actively pushed surveillance policies. Even if it hasn't in this case, it's quite obviously deferring to the FBI in this matter, basically stating (when you add the denial and subtract the granted stipulation), "Go ask your father the FBI." The FCC can't necessarily demand an NDA be signed before obtaining a cell tower spoofer, but it can make law enforcement route their requests through another government agency.

Filed Under: fbi, fcc, nda, stingray
Companies: harris corp.

Fark's Drew Curtis Explains How To Beat A Patent Troll (And Live To Tell The Tale)

from the don't-negotiate-with-terrorists dept

A few years ago, we wrote about a patent troll known as Gooseberry Natural Resources LLC who claimed to hold a patent (US Patent 6,370,535) which it believed broadly covered putting press releases online. It then sued a ton of companies, including Fark, Reddit, Slashdot, Digg, TechCrunch and others. While most of the companies played into Gooseberry's hands and "settled" along with the standard non-disclosure agreement (NDA), we pointed out that Drew Curtis at Fark stood his ground, and got Gooseberry to settle for nothing and (even better) to agree to no NDA -- meaning he'd be free to talk about it. This is important, because trolls rely on claims that they "settled" with others to insist that other companies recognize the validity of their patent. This isn't true. Many (perhaps most) companies settle because even if you were to win, it's usually cheaper to settle than to go through with the lawsuit.

Of course, unburdened by an NDA, Drew is making sure lots of people know what happened, and he recently did a TED talk in which he explains how he won, including some key suggestions for others in his shoes: The key lesson: don't negotiate with terrorists. As he points out, patent trolls have cost the US economy significantly more than terrorist attacks. He has three other points:

• Don't fight the patent, fight the infringement. Basically: overturning a bogus patent is crazy expensive and takes forever. It's generally much easier to show you didn't infringe -- yes, even if the patent is ridiculous. This is a problem with patent law today, but it's not one that anyone seems interested in fixing.
• Make it clear from the beginning that you have no money, or you'd much rather spend it on your own lawyers fighting this than giving it to the troll: the law firms that represent trolls almost always work on a contingency basis, meaning they only get paid if money comes through from the people they're suing. If that seems unlikely, the lawyers are much less interested in fighting, and are happier to "settle" often for little or no money.
• Let them know you'll make the process as annoying and as painful as possible: Basically flip the patent troll strategy back on the trolls themselves. Remember, the lawyers are on a contingency basis. Why bother with the annoying small company when they can be shaking down big companies who already have budgets set aside to settle such bogus lawsuits.

It's good to see Drew continuing to speak out about this and spread the lessons of his experience.

Filed Under: drew curtis, nda, patent troll
Companies: fark, gooseberry natural resources

Cornell Library Rejects Non-Disclosures On Journal Pricing; Will Reveal All Prices

from the go-big-red dept

One of the more pernicious areas of locking up knowledge that we've seen and discussed involves academic journals. These tend to involve private publishers who get a tremendous amount of completely free labor in terms of content submissions and even reviewers/editors... and then demand the copyrights of the research, while charging universities ridiculously high fees. Those publishers have also gone to great lengths to try to block the US government from trying to make federally funded research available to the public at no cost after a limited amount of time. And, of course, the journals often rely on secrecy to get the most money -- including requiring universities to sign non-disclosure agreements (NDAs) that forbid them from revealing how much they're paying for a journal.

It's nice to see some universities really starting to push back, and it's even nicer when it's a university that I attended and from which I received two degrees. My sister informs me that Cornell University has decided to take a stand and is refusing to sign any NDAs from various journals, and will make the prices they're being charged for such journals public. As the University made clear in a statement about this policy, it feels these agreements go against the basic nature of openness and fairness:

It has become apparent to the library community that the anticompetitive conduct engaged in by some publishing firms is in part a result of the inclusion of nondisclosure agreements in contracts. As Robert Darnton recently noted, by "keeping the terms secret, ... one library cannot negotiate for cheaper rates by citing an advantage obtained by another library." For this reason, the International Coalition of Library Consortia's "Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information" states that "Non-disclosure language should not be required for any licensing agreement, particularly language that would preclude library consortia from sharing pricing and other significant terms and conditions with other consortia." The more that libraries are able to communicate with one another about vendor offers, the better they are able to weigh the costs and benefits of any individual offer. An open market will result in better licensing terms.

Additionally, nondisclosure agreements conflict with the needs of CUL librarians and staff to work openly, collaboratively, and transparently. This conflict increases the likelihood that the terms of a nondisclosure agreement would be inadvertently violated, posing a threat to the university

The next step is focusing more and more on truly open journals and increasing their acceptance in academia.

Filed Under: journals, knowledge, learning, nda, openness, prices
Companies: cornell

Apple's Response To App Rejection Backlash? Ban Developers From Talking About It

from the digging-a-deeper-hole dept

As the backlash against Apple's arbitrary banning of apps it doesn't like (or which it feels competes) from the iPhone App Store continues, it appears that rather than come clean, Apple is going in the opposite direction. It's trying to impose its own monolithic tendency for silence on developers as well. That is, it's now imposing non-disclosure agreements on developer rejections -- telling them they cannot tell anyone that their apps have been rejected. Once again, Apple may discover that gagging developers on how Apple is screwing them probably isn't going to do much to endear those developers to the iPhone platform.

Filed Under: app store, applications, competition, iphone, nda, podcasting
Companies: apple