Police Justify Concealing Surveillance Tools from Courts with Non-Disclosure Agreements

Wired today fleshes out an ACLU
blog post that a Florida police department has been concealing the
use of cellphone tracking tools (without a warrant) from the courts
because they signed a non-disclosure agreement with the tool’s
manufacturer. Wired reports:

The shocking revelation came during an appeal over a 2008 sexual
battery case in Tallahassee in which the suspect also stole the
victim’s cellphone. Using the stingray — which simulates a
cellphone tower in order to trick nearby mobile devices into
connecting to it and revealing their location — police were able to
track him to an apartment.

During recent proceedings in the case, authorities revealed that
they had used the equipment at least 200 additional times since
2010 without disclosing this to courts and obtaining a warrant.

Although the specific device and manufacturer are identified in
neither the one court document available for the 2008 case, nor in
a video of a court proceeding, the ACLU
says in a blog post today that the device is “likely a stingray
made by the Florida-based Harris Corporation.”

The idea that an agreement gives police the authority (or
rather, the legal obligation, since that’s now non-disclosure
agreements work) to conceal evidence on behalf of a private
contractor is obviously absurd. The corporation who made the
equipment would not comment to Wired, so we don’t know who
is responsible for making this ridiculous claim. The ACLU notes how
the information finally came out and what they’re doing about
it:

When the suspect’s lawyer tried to ask police how they tracked
the phone to his client’s house, the government refused to answer.
A judge eventually forced the government to explain its conduct to
the lawyer, but only after closing the courtroom to the public and
sealing the transcript of the proceedings so the public and the
press could never read it. Only later, when the case was heard on
appeal, did the most jaw-dropping fact leak out. As two judges
noted during the
oral argument, as of 2010 the Tallahassee Police Department had
used stingrays a staggering 200 times without ever disclosing their
use to a judge to get a warrant.

Potentially unconstitutional government surveillance on this
scale should not remain hidden from the public just because a
private corporation desires secrecy. And it certainly should not be
concealed from judges. That’s why we have asked the Florida court
that originally sealed the transcript to now make it available to
the public. And that’s also why we have asked police departments
throughout Florida to tell us whether they use stingrays, what
rules they have in place to protect innocent third parties from
unjustified invasions of privacy, and whether they obtain warrants
from judges before deploying the devices.

Although secret stingray use has increasingly been
exposed by the
press (and by the
ACLU), public details are still scant. Our new work in Florida
is part of national efforts to understand how law enforcement is
using these devices, and whether reforms are needed to protect our
privacy from law enforcement overreach.

Some previous Reason reporting on stingray devices found
here.