UPDATE: FBI now claims its stingray NDA means the opposite of what it says

Omar Jordan Fawahl

DETAIL INSIDE

In new statement sent to Ars, FBI says local cops can talk about stingrays.

by  Cyrus Farivar -  May 15, 2015 10:13am EDT 

The FBI has released a statement regarding the use of stingrays, which apparently claims the opposite of what its nondisclosure agreement (NDA) with local law enforcement actually says.

According to The Washington Post, which quoted from but did not publish the statement on Thursday, the FBI doesn’t actually prevent local law enforcement from disclosing stingray use.

Ars received a copy of the statement from the FBI early Friday morning and is publishing it in full here for the first time.

Among other things, it says:

The NDA should not be construed to prevent a law enforcement officer from disclosing to the court or a prosecutor the fact that this technology was used in a particular case. Defendants have a legal right to challenge the use of electronic surveillance devices, and not disclosing their use could inappropriately and adversely affect a defendant’s right to challenge the use of the equipment.

Not only can stingrays, or cell-site simulators, be used to determine location by spoofing a cell tower, but they can also be used to intercept calls and text messages. Once deployed, the devices intercept data from a target phone as well as information from other phones within the vicinity. For years, federal and local law enforcement have tried to keep their existence a secret while simultaneously upgrading their capabilities. Over the last year, as the devices have come under increased scrutiny, new information about the secretive devices has come to light.

The statement comes just days after Washington state’s governor signed into law a new statute that not only requires that cops get a warrant before using a stingray, but that they fully describe its capabilities to judges in that warrant application and agree to provisions to minimize and destroy data captured from non-target phones.

Within the last year, there have been examples of prosecutors who have dropped cases—even after receiving guilty pleas—rather than offering disclosures on stingray use. The statement says that this provision has never been invoked by the FBI.

“Shall not… use or provide any information”

In April 2015, the New York Civil Liberties Union won a lawsuit filed against the Erie County Sheriff’s Office (ECSO) in Northwestern New York, where that agency was compelled to produce its NDA with the FBI, the first time one had been released in fully unredacted form. Similar agreements are believed to exist between the FBI and many other law enforcement agencies nationwide.

The newly revealed sections state:

7) The Erie County Sheriff's Office shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants, and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State's case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.

8) 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 the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence over the prosecutorial process. Where such is not the case, or is limited so as to be inconsequential, it is the FBI's expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.

"The FBI’s concern is with protecting the law enforcement sensitive details regarding the tradecraft and capabilities of the device," Allen said in the statement provided both to the Post and to Ars.

Previously, Allen declined to answer direct questions from Ars about the circumstances of stingray use. Last year, Allen sent Ars an affidavit from a top FBI official outlining the agency's position on why so little information has been publicly disclosed.

"The FBI routinely asserts the law enforcement sensitive privilege over cell site simulator equipment because discussion of the capabilities and use of the equipment in court would allow criminal defendants, criminal enterprises, or foreign powers, should they gain access to the items, to determine the FBI’s techniques, procedures, limitations, and capabilities in this area," Bradley Morrison, chief of the tracking technology unit at the FBI, stated in the affidavit.

"This knowledge could easily lead to the development and employment of countermeasures to FBI tools and investigative techniques by subjects of investigations and completely disarm law enforcement’s ability to obtain technology-based surveillance data in criminal investigations," Morrison said.

Earlier this month, the Department of Justice, which oversees the FBI, announced that it would be reviewing its stingray policies.

On Friday, Allen did not immediately respond to Ars' specific questions.