US pushing local cops to stay mum on surveillance
US pushing local cops to stay mum on surveillance
US pushing local police departments to keep quiet on
cell-phone surveillance technology
Associated Press By Jack Gillum and Eileen Sullivan,
Associated Press
WASHINGTON (AP) -- The Obama administration has been
quietly advising local police not to disclose details about surveillance
technology they are using to sweep up basic cellphone data from entire
neighborhoods, The Associated Press has learned.
Citing security reasons, the U.S. has intervened in
routine state public records cases and criminal trials regarding use of the
technology. This has resulted in police departments withholding materials or
heavily censoring documents in rare instances when they disclose any about the
purchase and use of such powerful surveillance equipment.
Federal involvement in local open records proceedings is
unusual. It comes at a time when President Barack Obama has said he welcomes a
debate on government surveillance and called for more transparency about spying
in the wake of disclosures about classified federal surveillance programs.
One well-known type of this surveillance equipment is
known as a Stingray, an innovative way for law enforcement to track cellphones
used by suspects and gather evidence. The equipment tricks cellphones into
identifying their owners' account information and transmitting data to police
as if it were a phone company's tower. That allows police to obtain cellphone
information without having to ask for help from service providers, such as
Verizon or AT&T, and can locate a phone without the user even making a call
or sending a text message.
But without more details about how the technology works
and under what circumstances it's used, it's unclear whether the technology
might violate a person's constitutional rights or whether it's a good
investment of taxpayer dollars.
Interviews, court records and public-records requests
show the Obama administration is asking agencies to withhold common information
about the equipment, such as how the technology is used and how to turn it on.
That pushback has come in the form of FBI affidavits and consultation in local
criminal cases.
"These extreme secrecy efforts are in relation to
very controversial, local government surveillance practices using highly
invasive technology," said Nathan Freed Wessler, a staff attorney with the
American Civil Liberties Union, which has fought for the release of these types
of records. "If public participation means anything, people should have
the facts about what the government is doing to them."
Harris Corp., a key manufacturer of this equipment, built
a secrecy element into its authorization agreement with the Federal
Communications Commission in 2011. That authorization has an unusual
requirement: that local law enforcement "coordinate with the FBI the
acquisition and use of the equipment." Companies like Harris need FCC
authorization in order to sell wireless equipment that could interfere with radio
frequencies.
A spokesman from Harris Corp. said the company will not
discuss its products for the Defense Department and law enforcement agencies,
although public filings showed government sales of communications systems such
as the Stingray accounted for nearly one-third of its $5 billion in revenue.
"As a government contractor, our solutions are regulated and their use is
restricted," spokesman Jim Burke said.
Local police agencies have been denying access to records
about this surveillance equipment under state public records laws. Agencies in
San Diego, Chicago and Oakland County, Michigan, for instance, declined to tell
the AP what devices they purchased, how much they cost and with whom they
shared information. San Diego police released a heavily censored purchasing
document. Oakland officials said police-secrecy exemptions and attorney-client
privilege keep their hands tied. It was unclear whether the Obama
administration interfered in the AP requests.
"It's troubling to think the FBI can just trump the
state's open records law," said Ginger McCall, director of the open
government project at the Electronic Privacy Information Center. McCall
suspects the surveillance would not pass constitutional muster.
"The vast amount of information it sweeps in is
totally irrelevant to the investigation," she said.
A court case challenging the public release of
information from the Tucson Police Department includes an affidavit from an FBI
special agent, Bradley Morrison, who said the disclosure would "result in
the FBI's inability to protect the public from terrorism and other criminal
activity because through public disclosures, this technology has been rendered
essentially useless for future investigations."
Morrison said revealing any information about the
technology would violate a federal homeland security law about
information-sharing and arms-control laws — legal arguments that that outside
lawyers and transparency experts said are specious and don't comport with court
cases on the U.S. Freedom of Information Act.
The FBI did not answer questions about its role in
states' open records proceedings.
But a former Justice Department official said the federal
government should be making this argument in federal court, not a state level
where different public records laws apply.
"The federal government appears to be attempting to
assert a federal interest in the information being sought, but it's going about
it the wrong way," said Dan Metcalfe, the former director of the Justice
Department's office of information and privacy. Currently Metcalfe is the
executive director of American University's law school Collaboration on
Government Secrecy project.
A criminal case in Tallahassee cites the same homeland
security laws in Morrison's affidavit, court records show, and prosecutors told
the court they consulted with the FBI to keep portions of a transcript sealed.
That transcript, released earlier this month, revealed that Stingrays
"force" cellphones to register their location and identifying
information with the police device and enables officers to track calls whenever
the phone is on.
One law enforcement official familiar with the Tucson
lawsuit, who spoke on condition of anonymity because the official was not
authorized to speak about internal discussions, said federal lawyers told
Tucson police they couldn't hand over a PowerPoint presentation made by local
officers about how to operate the Stingray device. Federal officials forwarded
Morrison's affidavit for use in the Tucson police department's reply to the
lawsuit, rather than requesting the case be moved to federal court.
In Sarasota, Florida, the U.S. Marshals Service
confiscated local records on the use of the surveillance equipment, removing
the documents from the reach of Florida's expansive open-records law after the
ACLU asked under Florida law to see the documents. The ACLU has asked a judge
to intervene. The Marshals Service said it deputized the officer as a federal
agent and therefore the records weren't accessible under Florida law.
___
Associated Press writer Brendan Farrington in
Tallahassee, Florida, contributed to this report.
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