Stingray Menace: Secrecy and NDAs in the Executive Branch

Stingrays are powerful surveillance tools that government agencies have been using for at least several years. Roughly the size of a small suitcase, Stingrays work by mimicking the operation of a cell tower. Unbeknownst to the user, a Stingray can convince a cell phone that it is a legitimate cell tower, receiving all of the information that the phone would typically only transfer to an actual tower: text messages, phone calls, emails, GPS data, etc. Furthermore, a Stingray can be used to triangulate the position of any cell phone unfortunate enough to connect to it. If you think this sounds Constitutionally suspect, you’re not alone. But, getting the question before a court might be harder than it appears.
Stingrays are manufactured by the Harris Corporation, based in Melbourne, Florida. According to the ACLU, they are used by at least 48 agencies in at least 20 states. The success of secret cell phone surveillance programs is tied to the public’s belief that cell phone communications are presumptively private, at least from law enforcement officials. As such,

the use of Stingrays is shrouded in a web of non-disclosure agreements involving the Harris Corporation, the FBI, and local police forces around the nation.

These agreements have served to keep the public unaware of this risks of being overheard for years, but even now that the cat is somewhat out of the bag, the NDAs serve at least two purposes: (a) they hinder courts abilities to decide what might be unconstitutional surveillance and (b) they prevent the public from discovering the technological specifications of the Stingray and designing countermeasures that protect individual’s privacy. In fact, the NDAs require police to notify the FBI to request the dismissal of a case if the technological specifications of the Stingray might be revealed in court. For example, according to the The Guardian, one such NDA from Florida contains the following clause: “The Florida Department of Law Enforcement will, at the request of the FBI, seek dismissal of the case in lieu of providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation.”
The FBI has chosen to honor these clauses in several recent cases. In Tallahassee, a man robbed a marijuana dealer with a BB gun and was charged with robbery with a deadly weapon—a felony carrying a mandatory minimum sentence of four years. However, after his defense attorney discovered police had used a Stingray in apprehending the defendant, a state judge ordered the police to show the Stingray to the attorney. Instead of handing over the device, the prosecution offered the defendant a deal too good to refuse. Instead of being labeled a felon, the defendant pled to a second-degree misdemeanor and received six months of probation.
In a similar situation last fall, prosecutors in Baltimore withdrew evidence rather than reveal its source. This decision came after a judge threatened to hold a police detective in contempt for refusing to reveal how the police had come about the location of the suspect’s phone. After unsuccessfully arguing that an NDA prohibited the detective from answering the question, the prosecution chose to withdraw the evidence rather than disclose possible use of a Stingray.
Police agencies should not be able to avoid the scrutiny of both the public and the courts via a few well phrased non-disclosure agreements. Even if the warrantless use of Stingrays is not a violation of the Fourth Amendment, the exact capabilities of such surveillance tools should be disclosed to the public so that its acceptable uses can be decided through the legislative process, not through unilateral action of the executive.