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Judge threatens contempt for declining to reveal cellphone tracking methods

296 points by driverdan 12y ago

PhantomGremlin 12y ago
Great quip in the linked article by a lawyer with the ACLU about nondisclosure agreements: "You can't contract out of constitutional disclosure obligations" I think that about sums up the "people's" side of the war.
- jholman 12y ago
  Even better, these two quotes from the judge: "You don't have a nondisclosure agreement with the court" and "I mean, this is simple. You can't just stop someone and not give me a reason."
msandford 12y ago
Kinda reminds me of this: http://www.penny-arcade.com/comic/2006/01/20 http://www.penny-arcade.com/comic/2006/01/20
sgnelson 12y ago
McNulty.
- tadfisher 12y ago
  You don't know Lester Freamon.
elwin 12y ago
It's significant that, rather than disclose their cell tracking methods, the police and prosecutors prefer to discard the evidence. This suggests that obtaining evidence is not the primary purpose of the tracking technology.
- mjgoins 12y ago
  Or maybe it suggests that the technology is only useful if it can be used for the illegal gathering of evidence.
  - deleted 12y ago
    [deleted]
    - forgotAgain 12y ago
      And maybe that's just fud to cow the citizenry.
- kevin_thibedeau 12y ago
  The federal government doesn't want its sources and methods exposed. They have allowed moles supplying info to the Soviets to go unprosecuted because nabbing them would have tipped off the Russians that their communication channels weren't secure.
  - fnordfnordfnord 12y ago
    And that's probably fine, because national security is more important than a singular crime. If the federal government doesn't want certain sources and methods exposed in criminal court cases against non-spy citizens, then the federal government mustn't allow the use of those sources and methods against non-spy citizens in criminal court cases.
- jimjoejohnjeff 12y ago
  It seems another conclusion is that they hope to somehow continue using these methods to gather more evidence in the future. By sacrificing this bit of evidence they may think they are saving untold oodles of future evidence. The argument maybe a little thin, seems like the judge maybe setting some sort of precedent here which would require them to always reveal their gather methods if they want to enter the evidence.
- rtpg 12y ago
belovedeagle 12y ago
IANAL, but I don't see why the detective shouldn't be held in contempt anyways, along with the prosecutors. It's nothing short of a blatant attempt to deceive the court to present "evidence" in the first place when you're not prepared to observe the defendants' due process right to confront witnesses and have access to evidence. As soon as the so-called evidence was put before the court, the detective and prosecutors should have had but two options: provide all details to the defense or go to jail. It's highly preferable that a murderer go free than the government be allowed to claim private contracts with domestic spying providers, contracts to which the detective and prosecutors aren't even party, are "national security" issues. It's disgusting how the detective on the stand expected those magic words to waive the defendant's rights when told to the judge, if the article is to be believed.
- morganvachon 12y ago
  IANAL either but I do have some experience with court proceedings. I'm surprised the defense didn't jump on this opportunity to file a motion to dismiss the case for lack of evidence (or maybe they did after the article was written). Given what little information about the case itself is presented in the article, it sounds like the cellphone evidence and anything gathered as a result of it, made up the bulk of the case against the kid.
  - elwin 12y ago
    The article did say the prosecution also claimed to have a confession from the defendant.
    - morganvachon 12y ago
      I thought that was the other juvenile defendant, the one not being tried as an adult; maybe I misread it. Edit: I did misread it, sorry. It was Taylor who confessed. I wouldn't be surprised though, if the defense still uses the near-contempt and the overall lack of evidence to try to plead down or even still seek a dismissal.
    - nagrom 12y ago
charonn0 12y ago
How illegal it must be if prosecutors are willing to do so much to keep it secret.
- fabulist 12y ago
  If they really did sign NDAs, their hands are probably tied.
  - schoen 12y ago
    It's likely that civil enforcement of an NDA to recover damages for answering a judge's question in a judicial proceeding would be barred by a court as against public policy, even if the NDA didn't contain an explicit provision allowing disclosure in a judicial proceeding. The theory would be that public policy prevents enforceability of contractual terms that require someone obstruct justice or to disobey court orders.
    - schoen 12y ago
      It's not the most perfect example, but "In McKenzie v. Lynch, 133 N.W. 490 (Mich. 1911), a husband settled a civil claim with a man who had engaged in "criminal conversation" with his wife. As part of the settlement, the husband promised not to "do anything whereby this matter will acquire any publicity whatever." Id. The court found this provision unenforceable because it could prevent the husband from "becom[ing] a complaining witness, in a criminal proceeding" against the other party to the contract. Id. at 491." (Alan E. Garfield, "Promises of Silence: Contract Law and Freedom of Speech," Cornell L. Rev. 83, 261.) That is to say that under these circumstances, one party could not sue the other for breaching a non-disclosure agreement by testifying as a witness in a criminal trial. I'm sure there's more recent and more relevant legal authority out there somewhere.
Estragon 12y ago
I don't understand why the Federal government is muzzling the police about this. The use of Stingray is not exactly a secret.
- throwaway234 12y ago
  Honestly I think it still is to the majority of the public. Sure another engineer who is at all concerned with privacy knows about these devices, but I doubt a kid who is robbing a pap john's driver at gunpoint is aware.
- madaxe_again 12y ago
  If you bothered to RTFA, it's not stingray.
  - noedig 12y ago
    "Defense attorney Joshua Insley still believes that police used a stingray to find Taylor. He cited a letter in which prosecutors said they were prohibited by the Department of Justice from disclosing information about methods used in their investigation. The portable device was developed for the military to help zero in on cellphones. It mimics a cellphone tower to force nearby phones to connect to it. Records shows that the Baltimore Police Department purchased a stingray for $133,000 in 2009."
    - kevin_thibedeau 12y ago
      It is quite likely that there are passive devices that monitor cell phone channels without tricking them into connecting to a phony base station. These technically wouldn't be "stingrays". That is basically what the SIGINT satellites do. It could certainly be miniaturized for local area monitoring. In any case, the cell providers have basic details of what phones communicate with their towers. It doesn't seem like that avenue wasn't used in this case though.
    - madaxe_again 12y ago
      I think it's more probable that they're covering their corporate friends, who have agreed to supply consumer data illegally. Were they using a stingray, they probably would have said as much.
Shinkei 12y ago
I agree with the decision. I'm kind of confused about the amount of resources going into this robbery--not to mention the level of defense the defendant is getting. I've heard of murder suspects getting less defense! Couldn't the phone record of the cell used to make the initial call provide enough information for the warrant? IANAL but it seems like the prosecution doesn't even need to introduce this evidence... plus doesn't the article say Taylor has already confessed? Why is this even on trial?
- talmand 12y ago
  Just because a suspect confesses doesn't mean they skip the trial process. The normal procedure at that point is to plead guilty and head into sentencing. The police can have the defendant clearly on video describing the crime in exact detail but if he pleads not guilty you get a trial. Which, even though it might seem odd at first, this is a good thing because how many people in the past were coerced to provide a confession to a crime they did not commit?
  - Shinkei 12y ago
    Yeah I agree. I guess that's what confused me is that maybe he recanted his confession or they weren't willing to bargain his sentence down to something he was willing to accept.
    - acveilleux 12y ago
      Maybe the confession does not support the specific charges they wanted to bring. And now the lack of the phone evidence might let the defendant off the hook for some of the charges.
- bravo22 12y ago
  My theory is that FBI is providing cities with some of these technologies as a sort of dog fooding. To iron out the kinks in their tracking technology. It does seem over kill to use something like that for a robbery, in a city like Baltimore. I know your post was more about the defence and the trial.
aqme28 12y ago
How does this not throw the case into "fruit of the poisoned tree" territory? If they used illegal tracking to further gather evidence, shouldn't all of that evidence be thrown away?
- chadzawistowski 12y ago
  That could be why they backed off, withdrawing that evidence rather than reveal their tracking methods.
- BrandonY 12y ago
  It did. They dropped all evidence found during the search of the home, including the phone itself and a handgun found inside.
- mikecb 12y ago
  Yes and no. There are a number of ways in which illegally obtained evidence, or FOTPT evidence can still be admitted. These are: attenuation, independent source, inevitable discovery, and good faith. Roughly stated, attenuation is when something is too far down the line of causation, time, or there is a voluntary act of free will by the defendant to separate the illegality from the evidence, and the balance rests in favor of admission. Independent source is kind of like parallel construction: if the investigator also discovered the evidence in a legal way completely independent of the illegal search, the evidence will be admitted. Inevitable discovery extends this to evidence which, despite not being discovered legally, would have discovered the evidence regardless of the illegal search. Finally, the good faith exception will allow in evidence where law enforcement is relying in good faith on a warrant which is defective, or that they are proceeding legally pursuant to common law or statute. I've mostly summarized here the sides of the coin that will admit evidence poisoned by an unlawful search, but there are other doctrines that will tip it into the excluded category.
  - res0nat0r 12y ago
    Has the cellphone collection they used been ruled illegal? I just thought they withdrew because they didn't want to share the tech they are using to collect the evidence.
lotsofmangos 12y ago
What I really do not understand is why the secrecy over methods at all. A cellphone is giving out an identifiable radio signal. Any half decent electronic engineering degree student should be able to cook up something that could track cellphones.
- gph 12y ago
  I'm not an expert an the matter, but surely something like that could be challenged under privacy laws or even unlawful search and seizure. The legality of stingrays hasn't been brought before a court yet as far as I'm aware, and it sounds like law enforcement and prosecutors are in no hurry to allow it to be.
  - thawkins 12y ago
    Passive radio location and broadcast stream decoding of the gsm announcements made by the phone, should be feasable, i dont see why the phone has to be tricked into a conversation with a fake cell tower to locate it. Under those circumstances would it still be a search, is it not the same as the owner of the phone wearing an audio system that broadcast loudly thier name. See:http://www.rtl-sdr.com/receiving-decoding-decrypting-gsm-signals-rtl-sdr/ http://www.rtl-sdr.com/receiving-decoding-decrypting-gsm-sig...
- neurobro 12y ago
  Maybe in the '90s. Today's students are busy cooking up ways to use ambient radio signals ("illuminators of opportunity") as passive radar to see into houses.
pXMzR2A 12y ago
Getting off the hook by simply discarding the evidence is quite questionable. For all we know, they had tortured someone to get to that evidence and the torture method was the subject of that 'non-disclosure' arrangement. (I believe high-ranking American Psychological Association members had such non-disclosure agreements with the federal government for their employment and 'consultancy' in Guantanamo torture sessions.)
deleted 12y ago
[deleted]
brador 12y ago
Anyone want to speculate on what the secret is? Is it the fake cell tower vehicles?
- fabulist 12y ago
  I'd wager they can pick up the cell phone pings to the tower. I don't know if these messages are encrypted; if they are, perhaps they also hold the keys, and that is the real secret.
rblatz 12y ago
It's obvious that departments have these devices, and everyone assumes they know how they work and what they do. So then why the secrecy? If we know what they do and how they work and that law enforcement has them what are they hiding? I propose all this secrecy is to hide the fact that they can either update the baseband firmware OTA or exploit it OTA and basically root the phone. As an extra incentive to shut up if they disclose any info in court they stop getting new exploit updates and/or baseband updates.
fithisux 12y ago
Judge threatens contempt for not providing sources with drivers.
Eye_of_Mordor 12y ago
What happens if the prosecution breaks the law. Can the judge toss the case?

296 points by driverdan 12y ago

Great quip in the linked article by a lawyer with the ACLU about nondisclosure agreements: "You can't contract out of constitutional disclosure obligations" I think that about sums up the "people's" side of the war.

jholman 12y ago
Even better, these two quotes from the judge: "You don't have a nondisclosure agreement with the court" and "I mean, this is simple. You can't just stop someone and not give me a reason."

msandford 12y ago

Kinda reminds me of this: http://www.penny-arcade.com/comic/2006/01/20 http://www.penny-arcade.com/comic/2006/01/20

sgnelson 12y ago

McNulty.

tadfisher 12y ago
You don't know Lester Freamon.

elwin 12y ago

It's significant that, rather than disclose their cell tracking methods, the police and prosecutors prefer to discard the evidence. This suggests that obtaining evidence is not the primary purpose of the tracking technology.

mjgoins 12y ago
Or maybe it suggests that the technology is only useful if it can be used for the illegal gathering of evidence.
- deleted 12y ago
  [deleted]
  - forgotAgain 12y ago
    And maybe that's just fud to cow the citizenry.
kevin_thibedeau 12y ago
The federal government doesn't want its sources and methods exposed. They have allowed moles supplying info to the Soviets to go unprosecuted because nabbing them would have tipped off the Russians that their communication channels weren't secure.
- fnordfnordfnord 12y ago
  And that's probably fine, because national security is more important than a singular crime. If the federal government doesn't want certain sources and methods exposed in criminal court cases against non-spy citizens, then the federal government mustn't allow the use of those sources and methods against non-spy citizens in criminal court cases.
jimjoejohnjeff 12y ago
It seems another conclusion is that they hope to somehow continue using these methods to gather more evidence in the future. By sacrificing this bit of evidence they may think they are saving untold oodles of future evidence. The argument maybe a little thin, seems like the judge maybe setting some sort of precedent here which would require them to always reveal their gather methods if they want to enter the evidence.
rtpg 12y ago

belovedeagle 12y ago

IANAL, but I don't see why the detective shouldn't be held in contempt anyways, along with the prosecutors. It's nothing short of a blatant attempt to deceive the court to present "evidence" in the first place when you're not prepared to observe the defendants' due process right to confront witnesses and have access to evidence. As soon as the so-called evidence was put before the court, the detective and prosecutors should have had but two options: provide all details to the defense or go to jail. It's highly preferable that a murderer go free than the government be allowed to claim private contracts with domestic spying providers, contracts to which the detective and prosecutors aren't even party, are "national security" issues. It's disgusting how the detective on the stand expected those magic words to waive the defendant's rights when told to the judge, if the article is to be believed.

morganvachon 12y ago
IANAL either but I do have some experience with court proceedings. I'm surprised the defense didn't jump on this opportunity to file a motion to dismiss the case for lack of evidence (or maybe they did after the article was written). Given what little information about the case itself is presented in the article, it sounds like the cellphone evidence and anything gathered as a result of it, made up the bulk of the case against the kid.
- elwin 12y ago
  The article did say the prosecution also claimed to have a confession from the defendant.
  - morganvachon 12y ago
    I thought that was the other juvenile defendant, the one not being tried as an adult; maybe I misread it. Edit: I did misread it, sorry. It was Taylor who confessed. I wouldn't be surprised though, if the defense still uses the near-contempt and the overall lack of evidence to try to plead down or even still seek a dismissal.
  - nagrom 12y ago

charonn0 12y ago

How illegal it must be if prosecutors are willing to do so much to keep it secret.

fabulist 12y ago
If they really did sign NDAs, their hands are probably tied.
- schoen 12y ago
  It's likely that civil enforcement of an NDA to recover damages for answering a judge's question in a judicial proceeding would be barred by a court as against public policy, even if the NDA didn't contain an explicit provision allowing disclosure in a judicial proceeding. The theory would be that public policy prevents enforceability of contractual terms that require someone obstruct justice or to disobey court orders.
  - schoen 12y ago
    It's not the most perfect example, but "In McKenzie v. Lynch, 133 N.W. 490 (Mich. 1911), a husband settled a civil claim with a man who had engaged in "criminal conversation" with his wife. As part of the settlement, the husband promised not to "do anything whereby this matter will acquire any publicity whatever." Id. The court found this provision unenforceable because it could prevent the husband from "becom[ing] a complaining witness, in a criminal proceeding" against the other party to the contract. Id. at 491." (Alan E. Garfield, "Promises of Silence: Contract Law and Freedom of Speech," Cornell L. Rev. 83, 261.) That is to say that under these circumstances, one party could not sue the other for breaching a non-disclosure agreement by testifying as a witness in a criminal trial. I'm sure there's more recent and more relevant legal authority out there somewhere.

Estragon 12y ago

I don't understand why the Federal government is muzzling the police about this. The use of Stingray is not exactly a secret.

throwaway234 12y ago
Honestly I think it still is to the majority of the public. Sure another engineer who is at all concerned with privacy knows about these devices, but I doubt a kid who is robbing a pap john's driver at gunpoint is aware.
madaxe_again 12y ago
If you bothered to RTFA, it's not stingray.
- noedig 12y ago
  "Defense attorney Joshua Insley still believes that police used a stingray to find Taylor. He cited a letter in which prosecutors said they were prohibited by the Department of Justice from disclosing information about methods used in their investigation. The portable device was developed for the military to help zero in on cellphones. It mimics a cellphone tower to force nearby phones to connect to it. Records shows that the Baltimore Police Department purchased a stingray for $133,000 in 2009."
  - kevin_thibedeau 12y ago
    It is quite likely that there are passive devices that monitor cell phone channels without tricking them into connecting to a phony base station. These technically wouldn't be "stingrays". That is basically what the SIGINT satellites do. It could certainly be miniaturized for local area monitoring. In any case, the cell providers have basic details of what phones communicate with their towers. It doesn't seem like that avenue wasn't used in this case though.
  - madaxe_again 12y ago
    I think it's more probable that they're covering their corporate friends, who have agreed to supply consumer data illegally. Were they using a stingray, they probably would have said as much.

Shinkei 12y ago

I agree with the decision. I'm kind of confused about the amount of resources going into this robbery--not to mention the level of defense the defendant is getting. I've heard of murder suspects getting less defense! Couldn't the phone record of the cell used to make the initial call provide enough information for the warrant? IANAL but it seems like the prosecution doesn't even need to introduce this evidence... plus doesn't the article say Taylor has already confessed? Why is this even on trial?

talmand 12y ago
Just because a suspect confesses doesn't mean they skip the trial process. The normal procedure at that point is to plead guilty and head into sentencing. The police can have the defendant clearly on video describing the crime in exact detail but if he pleads not guilty you get a trial. Which, even though it might seem odd at first, this is a good thing because how many people in the past were coerced to provide a confession to a crime they did not commit?
- Shinkei 12y ago
  Yeah I agree. I guess that's what confused me is that maybe he recanted his confession or they weren't willing to bargain his sentence down to something he was willing to accept.
  - acveilleux 12y ago
    Maybe the confession does not support the specific charges they wanted to bring. And now the lack of the phone evidence might let the defendant off the hook for some of the charges.
bravo22 12y ago
My theory is that FBI is providing cities with some of these technologies as a sort of dog fooding. To iron out the kinks in their tracking technology. It does seem over kill to use something like that for a robbery, in a city like Baltimore. I know your post was more about the defence and the trial.

aqme28 12y ago

How does this not throw the case into "fruit of the poisoned tree" territory? If they used illegal tracking to further gather evidence, shouldn't all of that evidence be thrown away?

chadzawistowski 12y ago
That could be why they backed off, withdrawing that evidence rather than reveal their tracking methods.
BrandonY 12y ago
It did. They dropped all evidence found during the search of the home, including the phone itself and a handgun found inside.
mikecb 12y ago
Yes and no. There are a number of ways in which illegally obtained evidence, or FOTPT evidence can still be admitted. These are: attenuation, independent source, inevitable discovery, and good faith. Roughly stated, attenuation is when something is too far down the line of causation, time, or there is a voluntary act of free will by the defendant to separate the illegality from the evidence, and the balance rests in favor of admission. Independent source is kind of like parallel construction: if the investigator also discovered the evidence in a legal way completely independent of the illegal search, the evidence will be admitted. Inevitable discovery extends this to evidence which, despite not being discovered legally, would have discovered the evidence regardless of the illegal search. Finally, the good faith exception will allow in evidence where law enforcement is relying in good faith on a warrant which is defective, or that they are proceeding legally pursuant to common law or statute. I've mostly summarized here the sides of the coin that will admit evidence poisoned by an unlawful search, but there are other doctrines that will tip it into the excluded category.
- res0nat0r 12y ago
  Has the cellphone collection they used been ruled illegal? I just thought they withdrew because they didn't want to share the tech they are using to collect the evidence.

lotsofmangos 12y ago

What I really do not understand is why the secrecy over methods at all. A cellphone is giving out an identifiable radio signal. Any half decent electronic engineering degree student should be able to cook up something that could track cellphones.

gph 12y ago
I'm not an expert an the matter, but surely something like that could be challenged under privacy laws or even unlawful search and seizure. The legality of stingrays hasn't been brought before a court yet as far as I'm aware, and it sounds like law enforcement and prosecutors are in no hurry to allow it to be.
- thawkins 12y ago
  Passive radio location and broadcast stream decoding of the gsm announcements made by the phone, should be feasable, i dont see why the phone has to be tricked into a conversation with a fake cell tower to locate it. Under those circumstances would it still be a search, is it not the same as the owner of the phone wearing an audio system that broadcast loudly thier name. See:http://www.rtl-sdr.com/receiving-decoding-decrypting-gsm-signals-rtl-sdr/ http://www.rtl-sdr.com/receiving-decoding-decrypting-gsm-sig...
neurobro 12y ago
Maybe in the '90s. Today's students are busy cooking up ways to use ambient radio signals ("illuminators of opportunity") as passive radar to see into houses.

pXMzR2A 12y ago

Getting off the hook by simply discarding the evidence is quite questionable. For all we know, they had tortured someone to get to that evidence and the torture method was the subject of that 'non-disclosure' arrangement. (I believe high-ranking American Psychological Association members had such non-disclosure agreements with the federal government for their employment and 'consultancy' in Guantanamo torture sessions.)

deleted 12y ago

[deleted]

brador 12y ago

Anyone want to speculate on what the secret is? Is it the fake cell tower vehicles?

fabulist 12y ago
I'd wager they can pick up the cell phone pings to the tower. I don't know if these messages are encrypted; if they are, perhaps they also hold the keys, and that is the real secret.

rblatz 12y ago

It's obvious that departments have these devices, and everyone assumes they know how they work and what they do. So then why the secrecy? If we know what they do and how they work and that law enforcement has them what are they hiding? I propose all this secrecy is to hide the fact that they can either update the baseband firmware OTA or exploit it OTA and basically root the phone. As an extra incentive to shut up if they disclose any info in court they stop getting new exploit updates and/or baseband updates.

fithisux 12y ago

Judge threatens contempt for not providing sources with drivers.

Eye_of_Mordor 12y ago

What happens if the prosecution breaks the law. Can the judge toss the case?