The secrecy surrounding StingRays isn’t just about Sarasota, or the Marshals. USA Today reported June 13 that Harris Corp. has been referring questions about particular uses of StingRay devices to individual police departments, which have in turn sometimes refused to release information because they say they signed a nondisclosure agreement with Harris when purchasing the devices. The few publicly available agreements vary slightly, but in general they prohibit the disclosure of information about the use of certain Harris products in police operations and investigations, including any results derived from those uses that would constitute a “release of technical data.” That’s problematic because courts in Florida and elsewhere generally treat nondisclosure agreements between government and private entities as irrelevant under public records law—unless, say, the agreement does nothing more than make confidential the type of information already exempt under the law. The policy rationale is prophylactic: To honor broad nondisclosure agreements would invite government agencies to create such agreements pro forma just to make confidential more information than not. That would offend basic principles underlying public records laws. Notably, a nondisclosure agreement between Harris and the Florida Department of Law Enforcement—the state police—says it must be interpreted to comply with Florida law. But, according to the Tallahassee Democrat, which has been pushing this story as hard as any paper here, it also says if a court orders the FDLE to disclose information covered by the agreement, “the agency shall use its best effort to make such disclosures in a manner that provides maximum protection.” That’s troublesome not only for the reasons above but also because it conflicts with numerous Florida judicial commands that the public records law must be liberally construed. For its part, the FDLE has said its agreement with Harris does not affect how the agency handles information about StingRay-type devices—because it has a superseding nondisclosure agreement with the FBI. According to that March 30 report in the Tallahassee Democrat, that arrangement requires the FDLE not to divulge “any of the investigative strategies, tactics or technical aspects of the technology.” But it’s unclear how that agreement actually affects the FDLE’s handling of surveillance information. In addition to local departments, the ACLU sought StingRay-related records from the FDLE. Interestingly, the agency’s March 18 response didn’t cite the FBI nondisclosure agreement—but it did claim the records were “generally exempt” under provisions in state law relating to data processing software; surveillance techniques, procedures or personnel; criminal justice information derived from federal or state information systems; and the exchange of federal criminal history records and information. Without knowing more—the FDLE didn’t explain why it claimed the exemptions it did or how they applied—it’s difficult to evaluate the merits of that case. Which may be the point. In the meantime, this sort of stance obviously makes reporting on these techniques more difficult. Reporters: keep digging, asking questions Despite these hurdles, sharp local reporting has brought some information to light—and even prompted some police departments to review their practices. After the ACLU filed its requests, the Tallahassee Police Department initially refused to release any information, but Jennifer Portman, of the Tallahassee Democrat, began asking questions about the department’s use of StingRay devices—and ultimately her reporting prompted the police chief to create a policy requiring a quarterly review of the technology’s use. The revised rules also call for court orders to be obtained, “if possible,” before the tracking devices are used. “Until I started asking, [the police] really weren’t sure how often they had used [StingRay devices],” Portman told CJR. “They had to create a spreadsheet to figure that out. “The key is to begin asking the questions to let law enforcement agencies know that we care and we want to know,” she added. “This is really powerful technology that can track you to within a few feet of your apartment door.” Portman’s reporting was the key that unlocked the Tallahassee records, according to ACLU attorney Nathan Freed Wessler. Wessler also intervened in a criminal case there in which testimony about the department’s use of StingRay devices had been sealed. He got the testimony unsealed, revealing, as Portman reported, that Tallahassee police officers had used the device in an apartment complex, going from window to window to pinpoint exactly which room a cellphone was in. Just as Portman and other Florida reporters were working the local story, the AP’s Jack Gillum and Eileen Sullivan took the broader view in a June 12 article that focused on federal involvement in local open records proceedings. Sullivan told us that the AP, which filed more than a dozen records requests around the country, plans to keep pushing for more information. “There are a lot of unanswered questions,” she said. “We’re still not sure how this technology works. We’re not sure what the FBI’s involvement is.” And no one is sure how many local police departments are using it, a question that reporters in Florida and elsewhere should be asking persistently. Wessler said the ACLU’s requests cover only a few of the more than 300 law enforcement agencies in Florida. Some may have bought their own cellphone monitoring devices while others may be borrowing them from the FDLE, the FBI, or other agencies. As for reporters in Florida and elsewhere, the ACLU has posted a map showing what agencies it has been able to prove use the devices. Even where use is known to happen, there are plenty of questions about the details, of course—but there are vast areas of the map no one has investigated. “There are lots of spots on the map that are not filled in—not because nobody has this technology but because nobody has dug up the records,” Wessler said. Jonathan Peters reported from Kansas. Greg Marx contributed reporting from New York.
Posted on: Wed, 08 Oct 2014 04:24:31 +0000
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