In 'mythical' agreement, Stingray maker says DSP can't share details with lawmakers

The company that sold cellphone tracking devices to the Delaware State Police believes officers are barred from telling state elected officials about the portable surveillance gadgets, according to a document revealed in a lawsuit between the American Civil Liberties Union of Delaware and the state.

Two years ago, a legal challenge to an open records request showed the FBI had prohibited state police from releasing details to anyone outside of law enforcement about the controversial devices, called Stingrays.

The curtain of secrecy extended even to court proceedings, as the FBI encouraged prosecutors to dismiss – or seek the settlement of – cases if defense attorneys asked probing questions that could reveal details about the boxy devices.

The revelations shocked many public defenders who at the time were not familiar with the location tracking tools.

Yet in recent months, a second nondisclosure agreement has surfaced – this time between the state police and Harris Corp., the company that sells Stingrays.

And it apparently binds police to a more explicit oath of silence.

The agreement, signed by a state police detective in 2010, stated that officers could not "discuss, publish, release or disclose any information pertaining to the (cellphone tracking) products" to the general public, to companies, to other governmental agencies, or even to other officers who do not have a "need to know."

A letter attached to the agreement, and signed by Harris Corp.'s account manager, said police are not permitted to talk about the devices with "elected officials."

"Stealth, quiet approach and skilled execution are the glue that transforms weapons and technology investments into capabilities and results," Harris Corp.'s Michael E. Dillon said in the letter. “Only officers with arrest authority are permitted to use them (Stingrays) or have knowledge of how they work."

Harris cited federal law for the conditions in the agreement, which it stated is similar to other "intelligence oriented aspects of your operations."

In an emailed statement sent Friday, the Delaware State Police said: "In the case of cell site simulators, numerous federal, state, and local law enforcement agencies have determined that the public release of technical details, applications, and operational procedures would create a significant detriment to the protection of their communities by providing criminal elements with the ability to circumvent the devices."

"Law enforcement agencies must always balance the desire to provide the public with full disclosure on the details of sensitive investigative and protective techniques versus the substantial risk that such knowledge would allow criminals to avoid detection," the statement said.

The News Journal sent an email to each General Assembly member who holds a leadership position, asking about the "elected officials" clause in the nondisclosure agreement. Only Sen. Greg Lavelle, R-Sharpley, replied.

He said that as criminals become more sophisticated so too should law enforcement – so long as officers obtain warrants before tracking phones.

It could become "more of a sticky wicket" if police are barred completely from disclosing the mere existence of particular surveillance devices to lawmakers, he said. "But I would have to digest that a little further."

Still, lawmakers are some of the "worst at keeping secrets," said Lavelle, the Senate minority whip.

"I'm not offended that they threw public officials in there (the nondisclosure agreement)," he said.

Originally developed for federal agents and the military, Stingrays are boxy mobile devices that emit signals, which mimic cellphone towers and trick phones into revealing location information. Advanced models can scoop up communications data.

In its statement, the state police said its Stingrays "cannot intercept the content of calls, texts or photographs, meaning that our personnel cannot listen to calls or read text messages using this device."

During the past decade, scores of law enforcement agencies in the United States and Canada have tracked cellphones with the device, which they say is instrumental in investigating kidnappings, drug dealing and other crimes.

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The depth of secrecy shrouding Stingrays in 2016 sparked an American Civil Liberties Union lawsuit on behalf of Newark resident Jonathan Rudenberg.

The Department of Safety and Homeland Security had denied Rudenberg's Freedom of Information Act request for details about how Stingray technology is employed and which specific models police had purchased.

Attorney General Matt Denn ruled the state did not have to disclose all information that had been requested. The ACLU challenged the decision.

During the resulting court proceedings, lawyers for the organizations demanded to see a signed nondisclosure agreement between the state police and Harris Corp.

Initially, attorneys for the Attorney General's Office and the Department of Safety and Homeland Security argued that no such agreement existed, calling it a "mythical" document.

"Their position was that we were just inventing the idea that they would have an NDA (nondisclosure agreement) with Harris," ACLU attorney Ryan Tack-Hooper said.

But in the summer of 2017, the state ultimately revealed the document in court.

"Their story was that they found this in a drawer somewhere," Tack-Hooper said. "But certainly, it's highly suspicious."

Attorney General's Office spokeswoman Nicole Magnusson said in an emailed statement that the nondisclosure agreement with Harris Corp. is not legally binding because state police Detective Dennis Schmitt, who signed the document, did not have authority to do so.

"This detective signed the NDA and placed it in his work files. It wasn’t with any of DSP’s other contracts, or other documents relating to cell site simulators," Magnusson said.

The state police in its statement did not say whether its officers complied with the nondisclosure agreement.

Whether Schmitt had the official authority or not, Tack-Hooper said, the detective presumably thought that he was bound by the agreement and therefore acted in accordance to its constraints as an officer within the state police's electronic surveillance unit.

"If you hold yourself out as an agent who has the power to enter this contract and you induce Harris Corp. to give you this technology because of what that agent has done, it is not a foregone conclusion that this wasn't and isn't binding," he said.

Schmitt, a 20-year police veteran, works in criminal investigations at state police headquarters in Dover, according to state employment data.

During its litigation, the ACLU also asked for internal police correspondence about Stingray, arguing, "It is not plausible that DSP spent hundreds of thousands of dollars on these devices and had no written correspondence concerning the transactions."

State attorneys in a response brief called the argument a bold assertion.

Stingray purchases by the state police totaled $950,000 in late 2015.

Ultimately, the two sides settled after police turned over the Harris Corp. nondisclosure agreement, as well as copies of recent warrants police had obtained to use the surveillance tool.

"They gave us the warrant applications, they gave us the information about what they provide to the court and we said, 'You know, this is enough; we are not going to continue with the lawsuit,'" Tack-Hooper said.

Delaware Superior Court Judge Richard R. Cooch ruled in December the plaintiffs could not recoup attorney fees as "appellants success, relative to his original FOIA request, was minimal." The ACLU filed a motion to re-argue the court fee issue.

While litigation over Stingrays has ended in Delaware, privacy concerns linger in Congress.

In August, four U.S. senators sent a letter to Attorney General Jeff Sessions expressing concern about Stingray disclosure during court proceedings and questioned whether the devices could impede calls of phones within their vicinity.

"Courts approving Stingray surveillance orders may not realize the extent to which this technology may invade the privacy of Americans, including that stingrays send probing signals into the homes of everyone in the targeted location," the letter stated.

Contact Karl Baker at kbaker@delawareonline.com or (302) 324-2329. Follow him on Twitter @kbaker6.