City Of Tacoma To Pay $50,000 To Privacy Activist For Over-Redacting FBI's Stingray Non-Disclosure Agreement

from the fines-set-to-'MAX' dept

In the fall of 2015, privacy activist Phil Mocek and the Center for Open Policing sued the city of Tacoma for its response to a request for Stingray documents. The documents Mocek obtained were heavily-redacted, despite there being several mostly-unredacted versions of the FBI's Stingray non-disclosure agreement already in public circulation.

(This would be the standard NDA the FBI appends to every Stingray purchase by local law enforcement agencies -- one that says all public records requests should be forwarded to the feds and encourages locals to toss cases rather than expose Stingray use. It's also the same contract the FBI was shocked to hear agencies were complying with after signing on the dotted line to take ownership of their new cell tower spoofers.)

The lawsuit was filed under the state's open records law, with Mocek challenging the Tacoma PD's use of the "investigative records" exemption to withhold significant amounts of a mostly bog-standard nondisclosure agreement. As was noted back then, the continued withholding of this information could become costly (for taxpayers): the state's public records law allows for fines of $500/day for violations.

The court has spoken and the Tacoma PD's excessive secrecy is indeed going to cost residents a chunk of change.

The city of Tacoma will pay a $50,000 fine as well as legal fees for violating the Public Records Act by withholding most of a nondisclosure agreement it signed to obtain cellphone surveillance equipment commonly known as a Stingray.

[...]

In an order signed Friday, Pierce County Superior Court Judge Frank Cuthbertson said the city’s redactions violated state law.

He ordered Tacoma to pay $100 a day for every day the city “wrongfully withheld the unredacted NDA from June 21, 2014, until November 3, 2015, when the city provided this record to plaintiffs,” a penalty period of 500 days. The penalty is the maximum allowable under state law.

The judge determined the exemption cited was improper and withholding large amounts of contractual language served no conceivable law enforcement purpose. The city blamed the FBI for its lavish deployment of black toner. Presumably, the FBI will push back, stating it expects no one to uphold the terms of an agreement it forces them to sign before they can acquire the devices.

This unjustified secrecy is going to hurt the city (and its taxpaying residents) a few more times. The Tacoma New Times points out there are several pending lawsuits dealing with the same Stingray documents, including one filed by the ACLU. The city says it won't seek reimbursement from the federal government for fines and fees, but maybe it should, especially if it's going to blame the FBI for the Tacoma PD's secrecy. This actually sounds like a "good faith" attempt to respect the terms of its agreement with the FBI. The FBI got the secrecy it wanted -- at least temporarily. The least it can do is offer to cover the damages of the NDA it says everyone must sign, but apparently doesn't expect anyone to follow.

Filed Under: fbi, imsi catcher, non-disclosure, phil mocek, privacy, stingray, tacoma

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

Baltimore Prosecutors Withdraw Evidence Rather Than Talk About Police Department's Stingray Usage

from the should-go-back-to-simpler-days-of-planting-evidence-and-falsifying-reports dept

They justify the use of Stingray devices (IMSI catchers/cell tower spoofers) by pointing out how great they are at catching criminals. They justify the secrecy surrounding them by claiming the release of any details will compromise investigations. And then they pull something like this.

Baltimore prosecutors withdrew key evidence in a robbery case Monday rather than reveal details of the cellphone tracking technology police used to gather it.

So… great for catching crooks but not all that great at keeping them caught. How embarrassing. That has to suck for Baltimore citizens, who have just discovered their local PD prizes non-disclosure agreements over putting bad guys away.

City police Det. John L. Haley, a member of a specialized phone tracking unit, said officers did not use the controversial device known as a stingray. But when pressed on how phones are tracked, he cited what he called a "nondisclosure agreement" with the FBI.

Which most people would take to mean don't go around spilling the details to normal citizens, family members or journalists. But as we've seen repeatedly, law enforcement agencies have taken this FBI-required NDA to mean (very conveniently, I might add) that they're allowed to tell no one. Goodbye, crusty old "due process" ideals. Hello, parallel construction.

But in this case, the judge responded with an obvious statement -- one that is made far too infrequently.

"You don't have a nondisclosure agreement with the court," Baltimore Circuit Judge Barry G. Williams replied.

Then Judge Williams called the PD's bluff: explain the evidence's origin or face contempt charges. Faced with this, the prosecution folded.

It's no secret the Baltimore Police Dept. has a Stingray device. Here's a document from 2009 containing the city council's approval of the Stingray purchase. Here's another document showing the PD's request for additional funds to upgrade the device. The general public is already aware of the device's existence and capabilities, and yet, the police balk at discussing it publicly, even if it means potentially damaging a prosecutor's case.

It's not just the phone-related evidence that's being withdrawn. It's everything derived from that Stingray-related search, including a handgun.

This isn't Judge Williams' first experience with police officers unwilling to discuss Stingray usage. The Baltimore Sun reports he also dealt with a non-discussion of the technology back in September. The device was used to track a phone (and a suspect) to a certain location. When Williams asked how the officers ascertained that the suspect actually had the phone on him, they actually invoked national security rather than answer the question.

"This kind of goes into Homeland Security issues, your honor," [Sgt. Scott] Danielczyk said.

Williams nailed this response, too.

"If it goes into Homeland Security issues, then the phone doesn't come in," Williams said. "I mean, this is simple. You can't just stop someone and not give me a reason."

That's how this is supposed to work. If law enforcement agencies want to deploy super-secret technology, then they shouldn't be able to drag evidence of unexplained origin into the courts with them. Allowing them to have it both ways steamrolls due process.

Filed Under: baltimore, courts, non-disclosure, secrecy, stingray, surveillance