Police Departments Sign Non-Disclosure Agreements with Surveillance-Tech Manufacturer, Conceal Info from Courts and Press

Here's Kim Zetter writing in Wired:

Tell no one I helped you.A non-disclosure agreement that police departments around the country have been signing for years with the maker of a cell-phone spy tool explicitly prohibits the law enforcement agencies from telling anyone, including other government bodies, about their use of the secretive equipment, according to one of the agreements obtained by an Arizona journalist.

The NDA includes an exception for “judicially mandated disclosures,” but no mechanisms for judges to learn that the equipment was used. In at least one case in Florida, a police department revealed that it had decided not to seek a warrant to use the technology explicitly to avoid telling a judge about the equipment. It subsequently kept the information hidden from the defendant as well.

A copy of the contract was obtained from a police department in Tucson, Arizona, which signed the agreement in 2010 with the Harris Corporation, a Florida-based maker of the equipment used by the department. The police department cited the agreement as one of the reasons it withheld information from a journalist who filed a public records request seeking information about the department’s use of the equipment.

You can—and should!—read the rest here. But if you want the short version, Frank Pasquale sums it up in five words: "State secrecy + trade secrecy = impunity."

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  • ||

    They will also sign nondisclosure agreements with prisons so they won't have to let anyone know they've put you in there.

  • Pavlov's Cat||

    Sounds like the basis of an action flick.

  • Pavlov's Cat||

    A contract trumps third-party 4th Amendment and due process rights?

  • ||

    It does if you don't even know the contract exists!

    First rule of protecting citizens' rights- don't talk about citizens' rights.

  • Bryan C||

    AMENDMENT 4: [ CLASSIFIED ]

  • Almanian!||

    What rights?

    *looks around, whistling*

  • Tonio||

    It will be interesting to see whether those PDs had the authority to sign those NDAs (from a perspective of signing away citizens' rights and the rights of the legislators to oversight). Of course they knew it was shady, but did it anyway.

  • Fist of Etiquette||

    Someone tell me why the judges issuing warrants on incomplete information aren't going completely apeshit over this.

  • John||

    They will. Also, this puts every case connected to it in jeopardy. If these assholes did warrentless searches and then lied about it to the court and "reconstructed" their probable cause like the DEA did with the NSA information, every single conviction obtained as a result is in danger of being overturned. I would fucking kill these people if I were a judge.

  • pan fried wylie||

    Rubberstamp them to death?

  • John||

    The wouldn't actually die from what I would do to them. They would just wish they had.

  • R C Dean||

    They will.

    Maybe a few. Most won't give a shit.

    Think about it: they don't really care much about the basis for most warrants anyway. If the cops just weren't telling them everything, eh, who cares. If the cops were actually lying, the judges might get a little more exercised, but c'mon. If they were really likely to get all angried up over testilying, we would have heard about it before now.

  • John||

    They are starting to. And juries increasingly don't believe cops on the stand.

    We don't hear about it because the media doesn't report it. But talk to people who do this sort of thing for a living and they will tell you it is happening. Not a lot, but it used to be unthinkable.

  • BardMetal||

    I've lost my faith in juries after that cop who beat a homeless man to death while on camera got off.

    Are you sure juries are more skeptical of cops?

  • bassjoe||

    Last I checked, that was in their job description.

    Judges -- most of whom are elected these days -- cannot deny warrants presented by the DA, at least not too many of them. S/he will face a challenge in the next election from a prosecutor calling the judge "soft on crime".

  • John||

    Depends on where they are at. And defense attorneys give money too. It is not that simple and not every judge is a government hack, especially at the state level.

  • John||

    Courts can see nondisclosure agreements. Only a cop could be so stupid and arrogant they would think singing a non disclosure agreement relieves them of the duty to inform the court where it is necessary.

  • Fist of Etiquette||

    Police departments should have consulted with their attorneys (and district attorney) who should have advised them what they can get away with.

  • John||

    yes. Sadly, I would bet some hack attorney tortured the law to tell these clowns it was okay.

  • Pro Libertate||

    That's a standard exception in an NDA--if the government makes you hand over the confidential information.

  • John||

    Yes. Either this story is about nothing and the writer doesn't realize that or the cops are complete morons. Or perhaps both.

  • Pro Libertate||

    Perhaps the cops thought they had an angle with the NDA and didn't realize that, no, they don't. It's not like they all read it--probably just knew there was some "agreement not to disclose."

  • John||

    Yes. That would be option number 2, "the cops are complete morons".

  • ||

    I'm also thinking Harris Corp is ultradevious and good at it too. They convinced the cops to do this, after all.

  • R C Dean||

    It didn't take any convincing, is my guess.

  • ||

    Cops are authority-driven, so all Harris had to do was convince one cop in a high position that this was a good idea, and all the little minions would fall in line.

  • R C Dean||

    Its a convenient pretext for the cops do what they want to do anyway.

    That NDA language technically wouldn't trigger until the court had ordered them to disclose. There is no such order in view when they apply for a warrant.

  • Pro Libertate||

    That's true, and it just makes it all the more evil.

  • John||

    Sure. But eventually that warrant will get litigated. And the only way to keep it from being litigated is lie and never tell the defense. Yeah, I am sure they will try that. But that won't work forever.

  • R C Dean||

    I bet it works more often than not. By a lot.

  • John||

    It only has to not work once and then every defense attorney asks for the information. Moreover, once the cat is out of the bag, some attorney will see all of it and it will all go public.

    Seriously RC, defense attorneys are not stupid.

  • sarcasmic||

    It only has to not work once and then every defense attorney asks for the information.

    Even public pretenders?

  • R C Dean||

    Its the defense attorneys I'm worried about. Its the prosecutors and judges.

  • R C Dean||

    Insert a "not" where appropriate.

  • The Late P Brooks||

    They hate us for our freedoms.

  • John||

    Cops? Yes, in fact they do. Cops certainly understand the evil nature of Al Quada. But they also cannot help but respect their crowd control methods.

  • Tim||

    What freedoms?

  • Brett L||

    My town is on the list. Idiots.

  • R C Dean||

    Yeah? My town is currently fighting the ACLU tooth and nail over this.

  • Pavlov's Cat||

    My town is on the list.

    Can you point me to the list?

  • Brett L||

    I don't have a complete list, but I just saw an article posted by a friend yesterday that the ACLU is suing the Tallahassee PD over exactly this.

  • Pavlov's Cat||

    Ah! I was staring hard at the articles I could find trying to figure out where you found a list.
    Thanks for letting me know.

  • Tim||

    LOOK OVER THERE-PUTIN!

  • bassjoe||

    What. The. Fuck?

    I mean, I have to other words.

  • R C Dean||

    If an NDA trumps FOIA, then FOIA is a dead letter. All any governmental body would have to do is enter into an NDA with anyone who could claim an interest in the information being disclosed. Want to cover up the way you steer biz to cronies through your "competitive" contracting process? No problem - the RFP contains an NDA. Etc.

  • Almanian!||

    NEEDZ MOAR ACRONYMS/INITIALNYMS

  • John||

    It is not that simple RC. First, FOIA already doesn't cover information that is proprietary or covered under the Privacy Act. If you are competing for a government contract, you can't FOIA your competitors' trade secrets.

    There is no exemption under FOIA for information that is "covered under an NDA". It has to be information covered by one of the 9 exemptions. The existence of an NDA is not relevant.

  • R C Dean||

    I'm looking at this exemption:

    A trade secret or privileged or confidential commercial or financial information obtained from a person;

    And thinking that an NDA gives you a pretty good hook for denying anything covered by the NDA. The NDA creates/defines the "confidential information" exempted from FOIA.

  • John||

    No it doesn't. First, it has to be that person's information. So that exemption doesn't cover government information. Second, it covers only the proprietary information. It wouldn't cover the existence of the agreement. It would only cover any trade secrets that were revealed to the government as part of the agreement.

    In this case, revealing the existence of the agreement itself defeats the purpose of the NDA. Further, it has to actually be proprietary information. That is a term of art. The government doesn't get to define proprietary information as "anything covered by an NDA". It doesn't work that way and any private attorney who tells his client that an NDA would automatically protect information he revealed to the government from FOIA is committing malpractice.

  • R C Dean||

    First, it has to be that person's information.

    Corporations are legal persons. Anything disclosed by a corporation that is covered by the NDA is that person's information that is deemed confidential.

    Second, it covers only the proprietary information.

    That's not what it says. It says confidential information is exempt.

    All I'm saying is that the existence of the NDA gives a prima facie reason to deny disclosure of anything covered by the NDA. To break that blockade, a judge is going to have to rule that the NDA is against public policy or that the requested information isn't covered by the NDA.

    Can a judge do that? Sure. But the FOIA game is won on delay and expense. And the NDAs certainly provide that.

  • John||

    Corporations are legal persons. Anything disclosed by a corporation that is covered by the NDA is that person's information that is deemed confidential.

    That is just not true. "Confidential" is a term of art. You can't just sign an NDA and call it "confidential".

    That's not what it says. It says confidential information is exempt.

    That is exactly what it says. B4 of the act

    (4)
    trade secrets and commercial or financial information obtained from a person and privileged or confidential;

    It is AND confidential. Read the act.

    All I'm saying is that the existence of the NDA gives a prima facie reason to deny disclosure of anything covered by the NDA.

    No it doesn't. Not even close. You couldn't write a legally sufficient FOIA denial on that basis.

  • John||

    This may come as a shock to you RC. But there are lawyers out there who didn't go to Harvard but because they practice the law in a given area, actually know something about it. I am one of those lawyers and FOIA is one of the areas I practice. I write and review these sorts of requests all of the time. And pretty much everything you say about FOOIA is just fucking wrong. An NDA cannot shield information that doesn't fit into one of the exemptions and the existence of an NDA is not a reason to deny the request. The reasons to deny the request are the exemptions and they don't say anything about an NDA. Moreover, the fact that it is "confidential" isn't good enough. It has to be "trade secrets or commercial..." and confidential for the exemption to apply. An NDA doesn't make information into something it is not.

    Fuck RC, I realize no one rises to your intellectual level around here. But try listening anyway. We do occasionally know something.

  • The Late P Brooks||

    If the cops just weren't telling them everything, eh, who cares. If the cops were actually lying, the judges might get a little more exercised, but c'mon. If they were really likely to get all angried up over testilying, we would have heard about it before now.

    If rubberstamping a warrant based on falsehoods actually came back to bite them in the ass, judges would care.

    But that's not how it works, is it?

  • Tonio||

    And I'm sure those PDs had absolutely no problem whatsoever signing those NDA's, and may have even suggested them in the first place.

  • Roger the Shrubber||

    When two parties collude to commit a crime, such as a violation of one's constitutional and civil rights, it's usually called a conspiracy. Unless, of course, one of those parties is protected by the FYTW clause of the constitution.

    What use is a constitution designed to protect citizens from the overreach of government power when the government is immune from any consequences of its violation?

  • Scruffy Nerfherder||

    I think Spooner had an answer for that.

  • postalmarksman||

    would a NDA work with my drug dealer uh i mean unlicensed pharmacist?

  • Invisible Finger||

    If they aren't doing anything wrong, they should have nothing to hide.

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