The American Civil Liberties Union (ACLU) filed a run-of-the-mill public records request about cell phone surveillance with a local police department in Florida.
The US Marshals Service last week reacted by swooping in and snatching those records out from under the ACLU’s nose just hours before they were supposed to review them.
After the Feds seized the surveillance records, US Marshals then moved the physical records 320 miles away, meaning the ACLU wouldn’t be able to learn how, and how extensively, police use snooping devices.
The ACLU promptly filed an emergency motion to get local police to disclose the records, which detailed how police had used a stingray to track nearby phones to a suspect’s apartment without getting a warrant.
A Florida judge last Tuesday granted the ACLU’s emergency motion.
A stingray is a surveillance device that sends powerful signals to trick cell phones – including those of innocent bystanders – into transmitting their locations and their IDs.
The ACLU called the records grab an “extraordinary attempt to keep information from the public”.
Even a former judge and a former United States magistrate judge found the US Marshals’ action “weird” and “out of line”, they told Ars Technica.
Former US magistrate judge Brian Owsley had this to say:
This one is particularly disturbing given the federal government's role in coming in and taking all of these records that were at issue in a state open government act.
In order to spirit away the records, the ACLU explains, the US Marshals waved a wand over Sarasota police detective Michael Jackson and transmogrified him – and the records – into their own property:
The Sarasota Police set up an appointment for us to inspect the applications and orders, as required by Florida law. But a few hours before that appointment, an assistant city attorney sent an email cancelling the meeting on the basis that the US Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.
The ACLU called the Marshal’s actions highly irregular:
The Sarasota detective created the applications, brought them to court, and retained the applications and orders in his files. Merely giving [the detective] a second title ('Special Deputy US Marshal') does not change these facts. But regardless, once the Sarasota Police Department received our records request, state law required them to hold onto the records for at least 30 days, to give us an opportunity to go to court and seek an order for release of the documents.
Last week, Ars Technica reported how use of the stingray in a Tallahassee, Florida, rape case only came out once testimony from a local police officer was unsealed.
The detective had told the court that he would only testify about how the stingray was used if his testimony was not made public.
That’s because, the assistant attorney general told the court, the police were under a non-disclosure agreement (NDA).
Late last Tuesday, the judge ordered unsealing of the entire transcript of the suppression hearing.
The ACLU published the portion that, it says, the government tried to keep secret.
The ACLU says the released information “confirms key information about the invasiveness of stingray technology”, including that:
- Stingrays “emulate a cellphone tower” and “force” cell phones to register their location and identifying information with the stingray instead of with real cell towers in the area.
- Stingrays can track cell phones whenever the phones are turned on, not just when they are making or receiving calls.
- Stingrays force cell phones in range to transmit information back “at full signal, consuming battery faster.”
- When in use, stingrays are “evaluating all the [cell phone] handsets in the area” in order to search for the suspect’s phone. That means that large numbers of innocent bystanders’ location and phone information is captured.
- In this case, police used two versions of the stingray – one mounted on a police vehicle, and the other carried by hand. Police drove through the area using the vehicle-based device until they found the apartment complex in which the target phone was located, and then they walked around with the handheld device and stood “at every door and every window in that complex” until they figured out which apartment the phone was located in. In other words, police were lurking outside people’s windows and sending powerful electronic signals into their private homes in order to collect information from within.
- The Tallahassee detective testifying in the hearing estimated that, between spring of 2007 and August of 2010, the Tallahassee Police had used stingrays “200 or more times.”
I agree with a commenter on Ars’s coverage, CQLanik, who noted that if a local police department can’t allow the public to know the shady methods used to come by their evidence, then that method shouldn’t be legal:
People have a right to face their accuser, and that right is being taken away by the use of secret evidence gathering.
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