July 23, 2014

There’s a relatively new kid on the law enforcement technology block that cuts out cell phone service providers as middle men to whom police need to go to get users’ cell phone data. It’s getting plenty of buzz — from USA Today to The Wall Street Journal to television news. Politically conservative news sources and liberal organizations alike have chimed in.

International Mobile Subscriber Identity (IMSI) catchers identify active cellular telephones in a particular area. They do this by presenting a signal to the cell phones within their range, causing nearby phones to attempt to register as if they were a real tower operated by the cellular carrier. That data can be used to determine a phone’s location.

“Stingray” is the trade name of the dominant IMSI catcher marketed to law enforcement. The devices include semi-portable models that are easily transported and equipped with directional antennas that can be used to identify the phones in particular streets, houses or rooms.

Police have reported that the devices do not capture the content of calls or other communications. Other than that, law enforcement agencies have been reluctant to talk about how the devices work, what information they do capture, or to even confirm whether they have one — in part, because the manufacturer requires buyers to sign a non-disclosure agreement.

Who’s Using Stingrays

Based on news reports (in which police and prosecutors are quoted or decline to comment), federal, state and local law enforcement from Florida to Alaska are using Stingrays.

In some states, Stingrays are available to local police departments via state surveillance units. The federal government funds many of the purchases through anti-terror grants but local and state police are using Stingrays for other police work. Indeed, police maintain that in addition to helping foil a terror attack, the devices can help solve other crimes like drug trafficking, fraud, gun-thefts, child abduction, and fugitives from justice.

What About the Details?
Questions are being raised about police agencies keeping information from the public pursuant to nondisclosure agreements with private commercial entities.

Journalists and the ACLU are filing federal Freedom of Information Act (FOIA) requests and state public records disclosure requests and suing departments for providing only heavily redacted documents that don’t contain the information being sought.

I wondered myself what legal authority police agencies were relying on to not disclose Stingray information contained in their records. I’m no expert in commercial nondisclosure agreements, but I couldn’t see how they would trump public records disclosure law.

I don’t claim to have done an exhaustive search, but the only legal authority I could find in the news’ reporting on this issue was in The Wall Street Journal, which contacted Sherry Sabol, Chief of the Science & Technology Office for the FBI’s Office of General Counsel, who said that information about stingrays and related technology is

“[C]onsidered Law Enforcement Sensitive, since its public release could harm law enforcement efforts by compromising future use of the equipment.”

So I did some legal research.

Law Enforcement Exemption to FOIA and State Public Records Law
There are a number of federal FOIA exemptions, including, Exemption 7: Protects records or information compiled for law enforcement purposes the release of which could reasonably be expected:

e. 7(E) – would disclose techniques and procedures for law enforcement investigations or prosecutions.

The DOJ provides a detailed guide to this exemption, including its legislative history (noting the broadening of the exemption by Congress in 1986) and court decisions on its application. http://www.justice.gov/oip/foia-guide14/exemption7.pdf

In Arizona, where the Tucson Police Department was sued this past March by a journalist and the ACLU for not fully disclosing Stingray-related records, state courts have held,

“When the release of information would have an important and harmful effect on the duties of the officials or agency in question, there is discretion not to release the requested documents.”

I understand the reluctance of law enforcement to discuss their use of Stingrays and other comparable technology. But I do think they need to make a clearer public case for that reluctance. Either law enforcement isn’t explaining that there are lawful exemptions they are relying on for nondisclosure of such information, or the media is ignoring their explanations.

So the public is left with media coverage like this:

“I don’t see how public agencies can make up an agreement with a private company that breaks state law,” said David Cuillier, the director of the University of Arizona’s journalism school and a national expert on public-records laws. “We can’t have the commercial sector running our governments for us. These public agencies need to be forthright and transparent.”

If government lawyers were thinking this would fade away if they stonewalled, that time has passed.

This isn’t about the commercial sector running our government. It’s about public policy reasons and legal exemptions for not turning over to serious criminals the very technology that can be used to investigate and apprehend them. Government lawyers need to go beyond reluctant, tooth-pulled statements like “law enforcement sensitive” and explain to the media and public there are legal grounds for police agencies’ nondisclosure of cell phone tracking technology and the reasons behind those exemptions.