NY Court Orders Sheriff To Reveal Details On Stingray Mobile Phone Surveillance

For quite some time now, we’ve been covering how various law enforcement agencies have been using “Stingray” (or similar) cell tower spoofing devices to track the public. Beyond the questionable Constitutionality of such mass surveillance techniques, what’s been really quite incredible is the level of secrecy surrounding such devices. We’ve written about how the US Marshals have “intervened” in various court cases to hide info about the use of Stingrays — and even telling local law enforcement to lie about their use of the devices. We’ve written about law enforcement officials claiming “terrorism” as the reason for needing Stingrays, but then using them for everyday law enforcement. We’ve written about the company that makes Stingrays, Harris Corp., forcing police to sign non-disclosure agreements barring them from revealing any info about their use. It also appears that Harris Corp. misled the FCC to receive approval for its mobile tower spoofing capabilities. Some police departments have even withdrawn evidence rather than talk about their use of Stingrays.

Thankfully, there’s been growing concern about these devices. Congress has been investigating and now it appears at least some courts are getting skeptical about the use of Stingrays. The New York Civil Liberties Union (NYCLU) has highlighted that a judge in one of its cases has ordered the Erie County Sheriff’s Office to reveal information to the public about its Stingray operations. The full ruling [pdf] is worth reading. While denying the NYCLU’s claim that the Sheriff’s Office didn’t conduct a thorough search as required, the judge is not at all impressed by the redactions in the documents that were released:

The purchase orders should have been disclosed in their entirety, without redaction of the various words, phrases, and figures thus far withheld. The purchase orders (and more particularly the redacted words, phrases, and prices), were not “compiled for law enforcement purposes” in the sense meant by the statute but, even if they were, their disclosure would not: “interfere with law enforcement investigations or judicial proceedings”; “identify a confidential source or disclose confidential information relating to a criminal investigation,” meaning a particular ongoing one; or “reveal [non-‘routine’] criminal investigative techniques or procedures, meaning techniques a knowledge of which would permit a miscreant to evade detection, frustrate a pending or threatened investigation, or construct a defense to impede a prosecution…. Further, the purchase orders (or, more precisely, the information redacted therefrom), although clearly constituting inter-agency materials” (the other agency involved was Erie County and its Office of the Comptroller), amount entirely to “instructions to staff that affect the public”…. Indeed, the instructions set forth in the purchase orders—’in essence, “Pay this bill of this vendor for this item purchased by the Sheriff’s Office at this price”—was and is of quintessentially compelling interest to and of undeniable impact upon the taxpaying public.

Finally, the Court finds that the purchase orders, and particularly the matters redacted therefrom, are not “specifically exempted from disclosure by state or federal statute” …. The Court rejects respondent’s arguments that the disclosure sought here would, if made, violate a particular federal statute, regulatory scheme, and executive order forbidding (and indeed criminalizing) the export of certain sensitive technology without government license or the illicit revelation of sensitive information about such sensitive technology to foreign nationals. The Court instead is convinced by petitioner’s argument that the disclosure of public records pursuant to New York’s Freedom of Information Law and the within judicial directive — even records concerning respondent’s ownership and use of a cell site simulator device — does not amount to the actual export of such arms, munitions, or defense technology. Further, the Court is satisfied by showing on this record that petitioner, a New York not-for-profit corporation, is not a “foreign person,” meaning that the disclosures sought by it pursuant to FOIL would not in fact run afoul of related federal legal restrictions on the revelation of sensitive technical data about export-restricted arms or technology.

Got that? Basically the court rejects the Sheriff’s Office’s contention that disclosing this information was somehow “exporting munitions” to “foreign persons.”

Oh, as for the non-disclosure agreement with Harris Corp.? The judge notes that a non-disclosure agreement is not a federal regulation:

At the outset, the Court notes its agreement with petitioner’s observation that the FBI-drafted non-disclosure agreement is not itself a federal statute specifically exempting anything from disclosure….

In fact, later in the order, the court says that the non-disclosure agreement itself should be disclosed:

Likewise, the Court concludes that this public record ought to have been disclosed in its entirety. As indicated, the agreement was entered into between the FBI and respondent as an apparent pre-condition of respondent’s being allowed to acquire and use the cell site simulator. The gist of the letter is not a recitation of the technological capabilities of the device or even the “hows” and “whens” or the advantages of its use for law enforcement purposes, but rather simply the need for the Sheriff’s Office to avoid disclosing the existence, the technological capabilities, or any use of the device to anyone, lest “individuals who are the subject of investigation … employ countermeasures to avoid detection,” thereby endangering the lives and safety of law enforcement officers and others and compromising criminal law enforcement efforts as well as national security. The Court has no difficulty in concluding that the agreement (or, more precisely, each redacted-at-length passage of it) was not “compiled for law enforcement purposes” in the sense meant by the statute…. Again, even if it was, the Court would conclude that the disclosure of the non-disclosure agreement would not thwart or prejudice any particular ongoing law enforcement investigation or pending prosecution…. Nor, the Court concludes, would the disclosure of the non-disclosure agreement “identify a confidential source or disclose confidential information relating to a criminal investigation,” again meaning a specific ongoing one, or “reveal” other than “routine” “criminal investigative techniques or procedures”….

There’s a lot more, including other documents, and all of that leads the judge to also grant attorney’s fees to the NYCLU. It will be interesting to see if the Sherriff’s Office challenges this, but it’s a pretty complete win for transparency in an area that law enforcement has been trying to keep totally secret for quite some time now.

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