The Dystopian Legal Agreement the FBI Makes Police Sign to Use Spy Technology
The FBI can force police departments to drop cases to preserve the Stingray's secrets.
Until recently, we've known very little about IMSI catchers—the fake cell phone towers that law enforcement uses to track suspected criminals. All we've known is that the FBI doesn't want us to know about their existence. Tuesday, we learned how strictly the agency sticks to that principle, which includes forcing local police agencies to drop cases that may reveal secrets about the cell phone tracking technology.
The FBI, in a newly disclosed document published by the New York Civil Liberties Union, admits to wanting to intervene in criminal court proceedings and in Freedom of Information Act request proceedings, in order to protect the technology's secrets. It also admits to wanting to intervene in court-ordered disclosures about the technology to keep IMSI catchers secret.
An IMSI catcher, popularly known as a Stingray, forces all cell phones within a certain radius to connect to it (even those of innocent bystanders), allowing law enforcement to track criminal suspects. Their use is common throughout the United States. We know, vaguely, that that's how they work, and certain Freedom of Information Act requests, court decisions, and evidence entered into criminal proceedings have showed us that they're regularly used to track prosecute criminals—and they don't require a warrant.
In addition to documents outlining the FBI's argument for keeping Stingrays secret, the NYCLU also revealed the document that the FBI forces local police branches to sign before it gives them permission to use Stingrays. The nondisclosure agreement is full of things seemingly straight out of George Orwell novel, and the entire six-page document is worth reading.
"Disclosing the existence of and the capabilities provided by [Stingrays] to the public would reveal sensitive technological capabilities possessed by the law enforcement community and may allow individuals who are subject of investigation wherein this equipment/technology is used to empty countermeasures to avoid detection by law enforcement," the agreement says.
"Disclosure of this information could result in the FBI's inability to protect the public from terrorism and other criminal activity because, through public disclosures, this technology has been rendered essentially useless for future investigations," it continues.
Police departments around the country have signed a similar, if not identical agreement.
An unredacted copy of this elusive document was finally secured by the NYCLU as a response to a Freedom of Information Act that was initially turned down. NYCLU sued, and, in March, a New York Supreme Court Justice ordered the Erie County Sheriff's Office to disclose information about Stingrays. Tuesday, the documents became public.
The lengths the FBI is willing to go to in order to keep Stingrays secret is, in the words of the NYCLU, "breathtaking." Among the provisions:
- Police are not allowed to talk about the technology "in press releases, in court documents, during judicial hearings, or during other public forums or proceedings."
- If a district prosecutor intends to use details about how the Stingray works during a court case, police must alert the FBI "in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise"
- The police must be willing to drop cases in order to protect the technology, if the FBI orders them to: "In addition, the Erie County Sheriff's Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing or allowing others to use or provide any information concerning [Stingrays]."
- If the agency receives a court order demanding release of the information, the agency must notify the FBI "in order to allow sufficient time for the FBI to intervene."
- If the agency receives a FOIA seeking information about Stingrays, it must alert the FBI to "allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels."
It's unclear how many of these things have actually come up around the country, though several of these instances happen—lots of FOIAs have been filed seeking information about Stingrays. There have also been cases thrown out because police wanted to protect secrets about the technology.
There has been increasing pushback against Stingrays. Last year, the Florida Supreme Court declared that their use without a warrant is unconstitutional, and more cases are pending.