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

That's not how it works, guys


It was in Florida. Is Sea World part of the conspiracy?
Credit: Orlando Travel Hotels / Foter / CC BY-NC-ND

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.