7 ms·

Cops hid use of phone tracking tech in court documents at feds’ request

185 points by Atlas 12y ago

downandout 12y ago
Cops are basically saying that they can do illegal things, and then actively conceal them during the discovery process so that defendants cannot challenge the illegal conduct in court. This kind of thing isn't going to stop. Everyone should assume that any unencrypted cell phone calls and texts can and will be examined by law enforcement. Act accordingly. That said, defense attorneys really need to be on the lookout for cases like this, where only vague references to confidential sources of information are disclosed. If they know the tell-tale signs, they can ask the judge to issue orders during discovery that will put the prosecutor in the position of either being held in contempt of court or disclosing to the defense the specific illegal tactics the police used.
- draugadrotten 12y ago
  > Everyone should assume that any unencrypted cell phone calls and texts can and will be examined by law enforcement. Act accordingly. Duh. It is a good thing that law enforcement can examine texts and phone calls, unencrypted and encrypted. However, it is unacceptable that doing so is hidden to the courts.
  - moomin 12y ago
    Actually, no, not without probable cause. It appears that in some of these cases that the probable cause was "because we bugged his phone".
vaadu 12y ago
How is this not a form of perjury? How does this not get every defendant a new trial? How many law suits will come of this for violations of people's constitutional rights? This crap should result in RICO charges and jail time for all parties that knew of this coverup and didn't try to stop it.
- talmand 12y ago
  I'm not sure if it would be considered perjury, but I would imagine it easily falls under withholding evidence from the defendant, of which is entitled to such information for their defense. But I doubt there would be any prosecutions on this because the people to prosecute such things are the the people who benefit from the technology.
  - tbyehl 12y ago
    Is it evidence? Sounds like they're using it to locate people who are already wanted by law enforcement, not to gather evidence of a crime. What's the recourse there?
    - talmand 12y ago
      To me, although not a lawyer, doesn't matter. This is just my gut instinct of what is right. If a person is a defendant then that person has the right to face all the evidence being used against them. If the defendant feels that a certain part of evidence gathering was done illegally then they have the ability to question that gathering in court, of which the court will decide the legality of the gathering method. If the prosecution has the ability to conceal methods of evidence gathering then that means the defendant has no recourse. If a person is under investigation, the police use a method to locate and/or track the suspect, and that method ultimately leads to an arrest because of where they happen to be while being located and/or tracked then I feel it should be included as evidence. But I'm not familiar with court cases concerning such technology so it's possible that all this has already been decided and I just haven't heard of it.
  - nkurz 12y ago
    It's perjury if the term "confidential source" legally implies it was information conveyed by a human informant instead of gathered by electronic surveillance. The definitions I can find online say that "confidential source" is synonymous with "human informant" and must be a person. While this might be a "legal person" which includes a corporation, it would be a stretch to call a Stringray a person. In my mind, they are simply lying about an illegal wiretap, and "this has not been challenged" only because the lie was taken as truth. But I'd guess the exact phrase was well-crafted by a lawyer who thought this alternate "plain English" interpretation would work as a defense. I'm doubtful a judge would view this charitably, but as you say, a prosecution where we find this out seems unlikely.
bediger4000 12y ago
It appears that there's more going on beneath the surface than we knew about. First, police departments sign NDAs so threatening that they don't want to reveal the use of stringrays. Next, US Marshalls seize Florida records of the use of stingrays. What does this pervasive concealment of the use of IMSI catchers/stingrays mean? I can think of two things: 1. IMSI catchers are used constantly, without warrant and maybe even without any administrative oversight. The discloseed use is the tip of some giant iceberg of surveillance. Revealing the use of IMSI catchers would imply the giant iceberg, even if we don't know where it is. 2. There's some kind of Freudian shame/concealment issue at the DoJ. They know it's un-American (and it is!) but they can't stop doing it for some reason. So, they hide its use.
- droopyEyelids 12y ago
  3. This is a valuable tool for police, and the police worry about criminal countermeasures once it becomes public. My money is on a combination of 2 & 3.
  - talmand 12y ago
    A tool so valuable that both local police, plus the Federal government, will break numerous laws and trample on the rights of citizens to protect the secret of its existence. An existence so secret that the only people to understand the possibility of its existence is anyone who's been paying attention the last decade. So secret in fact, that the Wikipedia page is only about three years old. I don't care how valuable it is. If it is used by government agencies in a manner that breaks the law, wait, numerous laws and rights, then that implies those agencies feel they are above the law. Once such agencies that enforce the law are no longer beholden to it, things tend to fall apart.
    - click170 12y ago
      First, I agree with everything you said whole-heartedly. I don't believe that most cops out there actually have an intent to do evil, or to trample your rights though. They deal with criminal after criminal after criminal, I think their perspective is more likely that these tools and methods help solve cases quicker and there-for save taxpayer money and that us civilians aren't able to see that perspective. I think that they aren't aware of the long term implications of what they're doing and that they should stop, but also that it's important not to think of them as evil if you want to have a dialogue with them about change.
CWuestefeld 12y ago
The way stingray works is reportedly by pretending to be a cell phone tower. It seems to me this can be used by a smartphone app to monitor for stingray usage. If the phone knows that it's not moving very fast (Androids certainly know this, I'm sure iPhones can as well), and a new cell phone tower appears suddenly, it seems to me that would be a good indicator somebody is stingraying nearby. (this isn't bulletproof, but would be a good starting point for further data analysis) An app like this could record and report such incidents, so that we could form a larger picture of how often and how widely it's used.
- ihsw 12y ago
  There are already mobile cell towers in use by AT&T et al, they're used for large events (eg: sporting events). http://en.wikipedia.org/wiki/Cell_on_wheels http://en.wikipedia.org/wiki/Cell_on_wheels Differentiating between them and stingrays would be difficult, especially since the baseband chips in your phone are proprietary technology that can lie to the host OS (iOS, Android, etc). However there are already projects for real-time mapping of cell towers on a national basis, which is a good start, but they will always be a step behind the US Government (for example). Additional reading: http://en.wikipedia.org/wiki/Mobile_cell_sites http://en.wikipedia.org/wiki/Mobile_cell_sites
- mentat 12y ago
  WiGLE.net has been collecting cell phone tower location data for a while. I wonder (a) if there are any Stingrays captured there and (b) if this with more data would be capable of building immediate alerting to Stringray use. I tend to think it could.
codyb 12y ago
I'm not sure what to say. Mostly I'm just frightened for the future. It's very disheartening to watch civil liberties be dismantled so rapidly. When you combine this with the secret transatlantic talks for the proliferation of extremely large multinational corporations and the rapid militarization of the police, it almost feels as if there might be a coup being slowly but silently executed right under our noses. And no one cares. I did my first stand up set and had a joke about going to an ACLU meeting, and no one even knows what the ACLU is. As scary as it, I certainly understand, that it is not as bad here as many places, but that doesn't mean I can't be concerned with the recent developments. I just hope the American spirit will shine through one day and turn all of this around. The house passing to defund back door NSA research is heartening at least. Lets see what happens in the Senate.
- nickff 12y ago
  The corporations are not the problem here, it would be much simpler if they were. Elected and appointed government officials seem to have a strong desire to create their vision of a pleasant and orderly society, whatever the costs. These people generally appear to believe that so long as 'enlightened' people (such as themselves) are in charge, nothing bad can result.
  - themartorana 12y ago
    I think it's quite interesting that - perhaps to my tinfoil-hat side - we're ending up somewhere between Orwell and Huxley. - Orwell feared the truth would be actively concealed. Check. - Huxley feared distractions would be so great that no one (or very few people) would care to seek the truth. Check. - Orwell feared we would become a captive culture. Check. - Huxley feared we would become obsessed with consumerism and preoccupied with distraction. Check. - Orwell assumed we would be controlled by inflicting pain. Check (foreign policy). - Huxley assumed we would be controlled by inflicting pleasure. Check (domestic news cycle, reality TV, lack of education.) Both had valid points and we're seeing both approaches being used. So where we end up, I have no idea... where we are isn't great. Talking points from this great comic strip: "Amusing Ourselves to Death" by Stuart McMillen, from 2009: http://flycl.ps/SXHdFP http://flycl.ps/SXHdFP Edit: formatting.
deleted 12y ago
[deleted]
NoMoreNicksLeft 12y ago
Some of you will end up on juries. Just vote to acquit. Obviously you can't vote to acquit when evidence is withheld at trial... how would you know? So vote to acquit for all crimes. Period. The damage that one or two or even dozens of criminals will cause is much less than that caused by a government that believes itself righteous when it undermines fundamental human liberties.
- charonn0 12y ago
  I was going to argue with you, but then I realized I agreed. It's now impossible to know whether the evidence presented to a jury was legally acquired, creating (in my mind) an automatic reasonable doubt.
  - hga 12y ago
    I don't think it's quite that bad for a lot of the more serious crimes, specifically the "real" crimes of violence. Unless it's a homicide, there's likely to be a victim eyewitness. Or surveillance cameras in areas where the accused has no presumption of privacy. There's also forensic evidence, which in the case of DNA is sufficiently strong in my judgement. Unless you're inclined to dismiss the latter because you've decided the system is so corrupt even that is in doubt. But I'd hope "enough" crimes of violence can be judged safely that the deterrent effect of convictions and punishment remains.
    - NoMoreNicksLeft 12y ago
      This isn't just about convicting the guilty. If only it were, we'd have the police tossing homes like jail cells once a week, trying to ferret out the criminals. Even criminals have rights, and they have the right to hear all evidence against them. Only then can they possibly dispute it. Jurors who rightly believe that not all evidence was presented or at least scrutinized by the defense have a moral obligation to acquit. If this happened enough, our government would soon be forced to act more responsibly.
- Crito 12y ago
  Be careful to not commit perjury during jury selection. They will almost certainly ask you if you have any beliefs that would prevent you from ruling based solely on the law; they want to know if you know that you are allowed to rule however you wish, regardless of what the law states, and are willing to do so. So either lie, but know that you are lying and accept the risk, or tell them "yes" when they ask you that.
jrochkind1 12y ago
A couple months pre-snowden, I was robbed of a cell phone, and reported it to the cops, and had an interview with a detective. Who told me I should not call and cancel the cell phone yet, because 'they had ways' of tracking it's use, wink wink, but we can't really tell you about the details, wink wink. Honestly, if he had left out the smirking and "we can't tell you about the details", it probably wouldn't have occured to me that there was anything odd here, sure, the cops can issue a warrant or some such paperwork and get records from the phone company probably, who knows. But with all the winking and smirking, I thought, geez, what the fuck, he says it's not supposed to be public information but he's telling me about it... should I, like, get in touch with the ACLU about this or something? I never did though.

185 points by Atlas 12y ago

Cops are basically saying that they can do illegal things, and then actively conceal them during the discovery process so that defendants cannot challenge the illegal conduct in court. This kind of thing isn't going to stop. Everyone should assume that any unencrypted cell phone calls and texts can and will be examined by law enforcement. Act accordingly. That said, defense attorneys really need to be on the lookout for cases like this, where only vague references to confidential sources of information are disclosed. If they know the tell-tale signs, they can ask the judge to issue orders during discovery that will put the prosecutor in the position of either being held in contempt of court or disclosing to the defense the specific illegal tactics the police used.

draugadrotten 12y ago
> Everyone should assume that any unencrypted cell phone calls and texts can and will be examined by law enforcement. Act accordingly. Duh. It is a good thing that law enforcement can examine texts and phone calls, unencrypted and encrypted. However, it is unacceptable that doing so is hidden to the courts.
- moomin 12y ago
  Actually, no, not without probable cause. It appears that in some of these cases that the probable cause was "because we bugged his phone".

vaadu 12y ago

How is this not a form of perjury? How does this not get every defendant a new trial? How many law suits will come of this for violations of people's constitutional rights? This crap should result in RICO charges and jail time for all parties that knew of this coverup and didn't try to stop it.

talmand 12y ago
I'm not sure if it would be considered perjury, but I would imagine it easily falls under withholding evidence from the defendant, of which is entitled to such information for their defense. But I doubt there would be any prosecutions on this because the people to prosecute such things are the the people who benefit from the technology.
- tbyehl 12y ago
  Is it evidence? Sounds like they're using it to locate people who are already wanted by law enforcement, not to gather evidence of a crime. What's the recourse there?
  - talmand 12y ago
    To me, although not a lawyer, doesn't matter. This is just my gut instinct of what is right. If a person is a defendant then that person has the right to face all the evidence being used against them. If the defendant feels that a certain part of evidence gathering was done illegally then they have the ability to question that gathering in court, of which the court will decide the legality of the gathering method. If the prosecution has the ability to conceal methods of evidence gathering then that means the defendant has no recourse. If a person is under investigation, the police use a method to locate and/or track the suspect, and that method ultimately leads to an arrest because of where they happen to be while being located and/or tracked then I feel it should be included as evidence. But I'm not familiar with court cases concerning such technology so it's possible that all this has already been decided and I just haven't heard of it.
- nkurz 12y ago
  It's perjury if the term "confidential source" legally implies it was information conveyed by a human informant instead of gathered by electronic surveillance. The definitions I can find online say that "confidential source" is synonymous with "human informant" and must be a person. While this might be a "legal person" which includes a corporation, it would be a stretch to call a Stringray a person. In my mind, they are simply lying about an illegal wiretap, and "this has not been challenged" only because the lie was taken as truth. But I'd guess the exact phrase was well-crafted by a lawyer who thought this alternate "plain English" interpretation would work as a defense. I'm doubtful a judge would view this charitably, but as you say, a prosecution where we find this out seems unlikely.

bediger4000 12y ago

It appears that there's more going on beneath the surface than we knew about. First, police departments sign NDAs so threatening that they don't want to reveal the use of stringrays. Next, US Marshalls seize Florida records of the use of stingrays. What does this pervasive concealment of the use of IMSI catchers/stingrays mean? I can think of two things: 1. IMSI catchers are used constantly, without warrant and maybe even without any administrative oversight. The discloseed use is the tip of some giant iceberg of surveillance. Revealing the use of IMSI catchers would imply the giant iceberg, even if we don't know where it is. 2. There's some kind of Freudian shame/concealment issue at the DoJ. They know it's un-American (and it is!) but they can't stop doing it for some reason. So, they hide its use.

droopyEyelids 12y ago
3. This is a valuable tool for police, and the police worry about criminal countermeasures once it becomes public. My money is on a combination of 2 & 3.
- talmand 12y ago
  A tool so valuable that both local police, plus the Federal government, will break numerous laws and trample on the rights of citizens to protect the secret of its existence. An existence so secret that the only people to understand the possibility of its existence is anyone who's been paying attention the last decade. So secret in fact, that the Wikipedia page is only about three years old. I don't care how valuable it is. If it is used by government agencies in a manner that breaks the law, wait, numerous laws and rights, then that implies those agencies feel they are above the law. Once such agencies that enforce the law are no longer beholden to it, things tend to fall apart.
  - click170 12y ago
    First, I agree with everything you said whole-heartedly. I don't believe that most cops out there actually have an intent to do evil, or to trample your rights though. They deal with criminal after criminal after criminal, I think their perspective is more likely that these tools and methods help solve cases quicker and there-for save taxpayer money and that us civilians aren't able to see that perspective. I think that they aren't aware of the long term implications of what they're doing and that they should stop, but also that it's important not to think of them as evil if you want to have a dialogue with them about change.

CWuestefeld 12y ago

The way stingray works is reportedly by pretending to be a cell phone tower. It seems to me this can be used by a smartphone app to monitor for stingray usage. If the phone knows that it's not moving very fast (Androids certainly know this, I'm sure iPhones can as well), and a new cell phone tower appears suddenly, it seems to me that would be a good indicator somebody is stingraying nearby. (this isn't bulletproof, but would be a good starting point for further data analysis) An app like this could record and report such incidents, so that we could form a larger picture of how often and how widely it's used.

ihsw 12y ago
There are already mobile cell towers in use by AT&T et al, they're used for large events (eg: sporting events). http://en.wikipedia.org/wiki/Cell_on_wheels http://en.wikipedia.org/wiki/Cell_on_wheels Differentiating between them and stingrays would be difficult, especially since the baseband chips in your phone are proprietary technology that can lie to the host OS (iOS, Android, etc). However there are already projects for real-time mapping of cell towers on a national basis, which is a good start, but they will always be a step behind the US Government (for example). Additional reading: http://en.wikipedia.org/wiki/Mobile_cell_sites http://en.wikipedia.org/wiki/Mobile_cell_sites
mentat 12y ago
WiGLE.net has been collecting cell phone tower location data for a while. I wonder (a) if there are any Stingrays captured there and (b) if this with more data would be capable of building immediate alerting to Stringray use. I tend to think it could.

codyb 12y ago

I'm not sure what to say. Mostly I'm just frightened for the future. It's very disheartening to watch civil liberties be dismantled so rapidly. When you combine this with the secret transatlantic talks for the proliferation of extremely large multinational corporations and the rapid militarization of the police, it almost feels as if there might be a coup being slowly but silently executed right under our noses. And no one cares. I did my first stand up set and had a joke about going to an ACLU meeting, and no one even knows what the ACLU is. As scary as it, I certainly understand, that it is not as bad here as many places, but that doesn't mean I can't be concerned with the recent developments. I just hope the American spirit will shine through one day and turn all of this around. The house passing to defund back door NSA research is heartening at least. Lets see what happens in the Senate.

nickff 12y ago
The corporations are not the problem here, it would be much simpler if they were. Elected and appointed government officials seem to have a strong desire to create their vision of a pleasant and orderly society, whatever the costs. These people generally appear to believe that so long as 'enlightened' people (such as themselves) are in charge, nothing bad can result.
- themartorana 12y ago
  I think it's quite interesting that - perhaps to my tinfoil-hat side - we're ending up somewhere between Orwell and Huxley. - Orwell feared the truth would be actively concealed. Check. - Huxley feared distractions would be so great that no one (or very few people) would care to seek the truth. Check. - Orwell feared we would become a captive culture. Check. - Huxley feared we would become obsessed with consumerism and preoccupied with distraction. Check. - Orwell assumed we would be controlled by inflicting pain. Check (foreign policy). - Huxley assumed we would be controlled by inflicting pleasure. Check (domestic news cycle, reality TV, lack of education.) Both had valid points and we're seeing both approaches being used. So where we end up, I have no idea... where we are isn't great. Talking points from this great comic strip: "Amusing Ourselves to Death" by Stuart McMillen, from 2009: http://flycl.ps/SXHdFP http://flycl.ps/SXHdFP Edit: formatting.

deleted 12y ago

[deleted]

NoMoreNicksLeft 12y ago

Some of you will end up on juries. Just vote to acquit. Obviously you can't vote to acquit when evidence is withheld at trial... how would you know? So vote to acquit for all crimes. Period. The damage that one or two or even dozens of criminals will cause is much less than that caused by a government that believes itself righteous when it undermines fundamental human liberties.

charonn0 12y ago
I was going to argue with you, but then I realized I agreed. It's now impossible to know whether the evidence presented to a jury was legally acquired, creating (in my mind) an automatic reasonable doubt.
- hga 12y ago
  I don't think it's quite that bad for a lot of the more serious crimes, specifically the "real" crimes of violence. Unless it's a homicide, there's likely to be a victim eyewitness. Or surveillance cameras in areas where the accused has no presumption of privacy. There's also forensic evidence, which in the case of DNA is sufficiently strong in my judgement. Unless you're inclined to dismiss the latter because you've decided the system is so corrupt even that is in doubt. But I'd hope "enough" crimes of violence can be judged safely that the deterrent effect of convictions and punishment remains.
  - NoMoreNicksLeft 12y ago
    This isn't just about convicting the guilty. If only it were, we'd have the police tossing homes like jail cells once a week, trying to ferret out the criminals. Even criminals have rights, and they have the right to hear all evidence against them. Only then can they possibly dispute it. Jurors who rightly believe that not all evidence was presented or at least scrutinized by the defense have a moral obligation to acquit. If this happened enough, our government would soon be forced to act more responsibly.
Crito 12y ago
Be careful to not commit perjury during jury selection. They will almost certainly ask you if you have any beliefs that would prevent you from ruling based solely on the law; they want to know if you know that you are allowed to rule however you wish, regardless of what the law states, and are willing to do so. So either lie, but know that you are lying and accept the risk, or tell them "yes" when they ask you that.

jrochkind1 12y ago

A couple months pre-snowden, I was robbed of a cell phone, and reported it to the cops, and had an interview with a detective. Who told me I should not call and cancel the cell phone yet, because 'they had ways' of tracking it's use, wink wink, but we can't really tell you about the details, wink wink. Honestly, if he had left out the smirking and "we can't tell you about the details", it probably wouldn't have occured to me that there was anything odd here, sure, the cops can issue a warrant or some such paperwork and get records from the phone company probably, who knows. But with all the winking and smirking, I thought, geez, what the fuck, he says it's not supposed to be public information but he's telling me about it... should I, like, get in touch with the ACLU about this or something? I never did though.