Local Police Departments Make Binding Agreements with FBI, Surveillance Tech Companies, to Withhold Surveillance Information from the Public

From a letter in which the FBI tells the Erie County Sheriff's Office that it can use a stingray device as long as it agrees to mislead legislators, reporters, and the general public. Courtesy of the NYCLU

After a lengthly struggle with the police department of Erie County, New York, the New York Civil Liberties union finally got ahold of records about its use of "stingrays"—surveillance devices that mimic cell-phone towers and track where your cell phone goes.

The NYCLU published the records on its website. One of the big problems they found: "... cops in that county, which includes the city of Buffalo, used the devices 47 times since 2010 but only once sought and obtained a court order to do so. That revelation contradicts what the county sheriff said last year when he asserted that the department only used the devices under 'judicial review.'"

WIRED covered the story and connected some troubling dots for anyone who's even remotely concerned with transparency in policing:

The records, which the NYCLU published in a blog post today, also show that the county sheriff’s office signed a stringent gag order with the FBI to maintain secrecy about their stingray records. The department was told to withhold information about the devices in any documents filed with courts, such as affidavits and other documents describing how they obtained evidence in criminal cases. The department was even told that the FBI maintained the right to intervene in county prosecutions to request criminal cases be dismissed if there was a chance that a case might result in the disclosure of information about law enforcement’s use of stingrays.

Many police departments have signed non-disclosure agreements with the Harris Corporation, one of the leading makers of the devices, to prevent them from releasing records about the systems or discussing them. In Florida, the U.S. Marshals service went so far as to seize records about a local police department’s use of stingrays in order to prevent the American Civil Liberties Union from obtaining them. And many law enforcement agencies have deceived judges about their use of the devices in order to prevent defendants and the public from learning about how they’re being used.

So... we have local police departments signing gag orders with the FBI, making non-disclosure agreements with private manufacturers of surveillance technology, and deceiving judges, as well as federal marshals seizing police records—all in the name of preventing the public from leaning about the techniques their police are using to police them.

Sounds like that should be illegal.

But, as the Washington Post has pointed out, there is "virtually no case law on how the Fourth Amendment—which prohibits unreasonable searches and seizures—should apply to this technology."

Baltimore police have been engaging in the same kind of contractual obfuscation—and if you didn't get around to reading last year's Tacoma News Tribune investigation about Pierce County judges approving police use of stingray devices without even realizing it, now is a good time to catch up.

Speaking of surveillance, this morning I called Peter Smith, the Coeur d'Alene attorney who appeared before the Ninth Circuit Court in December to challenge the constitutionality of the NSA's bulk phone-data collection program. (We posted a detailed account of the hearing, which had its moments of comedy, on Slog.) His is one of a few cases—in the Ninth, Second, and D.C. Circuit courts—that could be the NSA case which winds up in front of the Supreme Court.

He said he's still waiting for a decision from the court about whether his case will proceed. Is there a deadline for a decision?

"No," he said. "It's entirely up to the court. A typical civil case can take up to a year."

As usual, the technology moves faster than the law.