FBI Flip-Flops on Disclosing Cellphone Surveillance Technology

With all the attention this week on the National Security Agency's phone-spying program, its congressional re-authorization debate, and Sen. Rand Paul's filibuster-style speech against re-authorization, let's not forget there are other law enforcement agencies also tracking your phone calls.

One of them is the FBI, which has been happy to let the NSA take all the heat over its metadata collection program while helping local police departments deploy so-called "stingrays."

While the NSA program logs call data like time and numbers dialed (along with some basic location information), the stingrays can do much more in terms of pinpointing the location of a call and are even capable of intercepting calls and text messages. They work by simulating a cellphone tower, effectively tricking phones in the area to pass their content through the stingray and into cops' hands.

All of this is happening behind a veil of secrecy. Local police departments that wanted to get their hands on some of the FBI's stingray technology had to sign a nondisclosure agreement promising to never talk about the stingrays in a court of law.

The NDA also includes a provision that local police would have to drop any case, at the FBI's request, if there was a risk that prosecuting the case would lead to revealing the stingray technology.

It's secret policing at its very finest.

We know these details about the stingray nondisclosure agreements because the American Civil Liberties Union (ACLU) won a lawsuit last month against the Erie County Sheriff's Department in western New York state, forcing the department to reveal its agreement with the FBI.

Now that the information is out there in the public, the FBI is trying to reassure everyone it wasn't secretly spying on your phone calls, and certainly wasn't telling local cops to keep the program secret.

"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," FBI spokesman Chris Allen wrote in an email to tech journalism site Ars Technica.

That's a funny way to view a nondisclosure agreement, right? As not intended "to prevent … from disclosing" something?

It's even more odd when you read through the NDA the ACLU got from the Erie County Sheriff's Department, which includes this section:

"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 pretrial 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."

In other words, the sheriff's department was prohibited from discussing any aspect of the stingray program — except the "evidentiary results," meaning the data collected from cell phones — without expressed written consent of the FBI.

But now the FBI says that doesn't mean exactly what it says and local police have always been allowed to talk about the stingrays in court.

"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," Allen told Ars Technica.

He's right about that. It's pretty hard for a defendant to challenge the existence of a secret program that no one is allowed to discuss in court — and that's exactly the problem with stingrays, the FBI's nondisclosure agreements, and the way local cops could be using the technology to broadly track Americans.

As The Washington Post notes, law enforcement has claimed they only use the devices to track known "persons of interest," but data released by those same agencies has often shown that stingrays are being used in routine investigations like drug busts.

The whole matter has caught the attention of the U.S. Department of Justice, which recently announced it would review the FBI's use of the stingray technology.

Eric Boehm is a reporter for Watchdog.org and former bureau chief for Pennsylvania Independent. He lives in Minneapolis, Minnesota, where he writes about state governments, pensions, labor issues, and economic/civil liberty.