Legal experts—including a former US magistrate judge—are dismayed and appalled at the stingray-related e-mails published late Thursday evening by the American Civil Liberties Union.

As we reported last night, the 2009 e-mail exchange between police departments in Sarasota, Florida and North Port, Florida, shows that local law enforcement had concealed the use of cell phone-tracking devices, known as "stingrays," in court documents. This deception could lead to punishment for law enforcement officers or perhaps even their lawyers, the legal scholars said.

Specifically, one e-mail from Sarasota police to North Port police states, “In reports or depositions we simply refer to the assistance as ‘received information from a confidential source regarding the location of the suspect.’ To date this has not been challenged…”

The ACLU has been actively trying to learn about the use of stingrays by local law enforcement agencies in Florida. This month, it published new documents obtained through public records requests and filed a related lawsuit. Earlier this week, a Florida state judge allowed the seizure of stingray records by the US Marshals from the Sarasota police as a way to shield them from public disclosure laws.

One former magistrate judge in south Texas, who has actively been trying to shed light on related forms of digital surveillance, said that concealing stingray use from judicial oversight was “extremely bad.”

“It supports my concern that the federal government is presenting applications for stingrays that may be misleading or not adequately notify the magistrate judge what the application is actually seeking in terms of electronic surveillance,” Brian Owsley , now a law professor at Texas Tech, said.

“The idea of attempting to seal an old probable cause affidavit and reissuing a new one that attempts to conceal certain facts or circumstances strikes me as potentially fraudulent or that the attorneys appearing in state court may be committing a fraud upon the court," he said. "If this were to be the case, that is an extremely serious matter in which attorneys could be sanctioned or reported to state bar officials and law enforcement officials could be held in contempt or sanctioned in other manners.”

Similarly, Fred Cate, a law professor at Indiana University told Ars that such an action by the police is “really serious.”

“Our system of checks and balances depends on judges knowing what they are approving when asked to issue warrants,” he said. “A deliberate effort by federal law enforcement authorities to deceive a judge is a profoundly serious matter. This is precisely what undermines public trust in what otherwise could be lawful surveillance and in the government authorities that conduct it. Moreover, it is a stupid thing to do because it can make the warrant invalid, thereby make the evidence obtained under it inadmissible in court. The real question now is what steps federal authorities take to investigate and to sanction officers involved in wrongdoing.”

“A whole new level” of wrong

Meanwhile, Russell Covey , a law professor at Georgia State University, acknowledged that these devices may in fact be legal—there simply haven’t been enough high-level court rulings to be completely sure.

“However, the failure of law enforcement officials to disclose to courts the actual source of their information and to pretend that it came from a ‘confidential source,’ is deceptive and possibly fraudulent,” he told Ars. “Affirmatively misleading the courts about the source of evidence in sworn warrant applications would clearly constitute a constitutional violation.”

Brian Pascal, a research fellow with the University of California, Hastings Law School, told Ars that this level of deception has reached a “whole new level.”

“New technology makes it easier and easier for police to gather information and also to hide the source of that information,” he said. “In this kind of extreme case, it makes it almost impossible for a suspect to refute the evidence used against him. This isn't how our legal system is supposed to work. You don't get to lie about where your information came from.”

Owsley also noted that the ultimate sanction for an attorney that engaged in such behavior would be disbarment. "That seems extreme to me, but it could be feasible," he said. "Similarly, if a judge were to find a law enforcement officer or an attorney in contempt, that person could actually be jailed for a period of time. Again, that seems extreme to me, but it could be feasible. In the end, the sanction is up to the discretion of the individual judge and thus if you asked five judges how they would handle a specific scenario, you would get seven opinions."

But his colleagues don't expect much to happen in terms of meaningful punishment.

"Realistically, the biggest risk to the government is that the judge is miffed and so views future warrant requests with greater skepticism," Cate said. "Theoretically, the judge could hold the requesting officer in contempt or could ask the Justice Department to investigate, which could in theory lead to termination or criminal prosecution. That will never happen—not with this administration. After all, if the [director of national intelligence] can lie to Congress without consequences, surely a law enforcement official can deceive a court without worrying about consequences."