Stung by Stingray -- Again
By Mark Rasch
The St. Louis Zoo is having a lovely exhibit which started last week entitled “Stingrays of the Caribbean Cove.” Go see it before October, because those may be the only stingrays you get to see in St. Louis.
Certainly, you won’t see the government surveillance device of the same name in court there any time soon.
On October 23, 2013, Brandon Pavelich of St. Louis was pistol whipped and robbed as part of a series of armed robberies running through various neighborhoods in the gateway city.
All told, 7 people were robbed of cash and their cell phones. Police, using what they described in official documents as “a “proven law enforcement technique” tracked the cell phone of at least one victim to a motel room in Caseyville, Missouri and arrested three men and a woman, and charged them with first degree robbery and armed criminal action. A victory for justice and the forces of goodness and niceness.
But a pyrrhic one.
In preparation for trial, a lawyer representing one of the accused had the temerity to ask what exactly this “proven law enforcement technique” was. It apparently was a stingray device – a cell phone simulator that captures the cell phone records not only of criminals, but also of everyone in the hopes of finding criminals.
The device, manufactured by Harris Corporation, tricks cell phones into thinking that the device is a cell phone tower, and to pony up its secrets to the little black (well, black and silver) box rather than connecting to the cell tower. In fact, it gives itself priority over the cell tower, so that a person whose phone is tricked into connecting to stingray can’t make calls or phone 911 while so connected.
Or so we think. Problem is, nobody outside of Harris Corporation and maybe some dudes at the FBI know what the device does or how it works. Well, not exactly. And that includes the cops who use it, the judges who approve its use, the prosecutors who submit evidence collected by the device, and of course, the defendants and defense counsel ensnared by the use of the device.
So much for transparency.
In fact, Harris Corporation puts language in its contracts that specifically say that those using the technology can’t tell anyone how it works (even judges) and must dismiss criminal cases rather than tell the truth. And that’s what happened in St. Louie – when the defense counsel asked about this “proven law enforcement technique” the investigator said that he wasn’t allowed to disclose it. Shortly thereafter, the prosecutor dismissed the charges against the robbers (except for the one who pled guilty) because “continuing investigation has disclosed evidence which diminishes the prosecutive merits of this case,” and for reasons wholly unrelated to the possible use of the stingray.
Of course, another place to see an actual stingray is at the National Aquarium at the harbor in Baltimore, Maryland. Again, the Charm City police won’t let you see an electronic stingray.
They also dismissed charges in a robbery case rather than let people know they had used the technology over 4,300 times in the past 8 years. According to at least one report, the Baltimore police are deliberately refusing to respond to subpoenas to testify about their use of the technology, and hiding evidence from defendants, defense lawyers and others.
In a recent carjacking and robbery case in Baltimore, a detective testified about his use of stingray to find a defendant in a group home by using the tool. The detective was asked about the non-disclosure agreement with Harris corporation, "Does (the document) instruct you to withhold evidence from the state's attorney and the circuit court of Baltimore city, even if upon order to produce?" "Yes," he said indicating that he had also ignored a subpoena he received to bring the device with him to court.
So what we end up with is a conspiracy of silence between Harris, the police, the courts, the prosecutors and others. The police don’t tell the courts what the technology is, and how it is used. They probably don’t tell the courts that the device interferes with regular cell communications. They probably don’t tell the courts that the device captures cell records of millions of people. They probably don’t tell the courts that the records of calls, phones, locations and other data of millions of people is retrieved, stored and analyzed by the police in the hopes of finding the records of the one person for whom they may – or may not – have probable cause.
In fact, the police may -- or may not – get a surveillance order for the use of these devices. We don’t know. We don’t know if they get at Title III interception order. An Article III Search Warrant. A trap and trace order. Or a simple subpoena. Or an order under the All Writs Act. We don’t know the legal authority, or the legal standard used for these orders, because we need to protect the rights of Harris Corporation.
What’s worse, police and prosecutors DO NOT tell accused people that the device was used – and more importantly, they don’t tell the suspects arrested that, if they choose to challenge the use of the devices, the prosecutors will dismiss the charges. They don’t tell people pleading guilty to offenses that at least some of the evidence collected cannot be used because it cannot be challenged.
It’s as if the government were routinely searching people’s homes with secret technology, finding evidence of crimes, getting people to plead guilty while all the while knowing that the evidence –even if lawfully obtained by warrant – is essentially unusable.
The law requires the prosecution to disclose to the defense all evidence that is material on the issues of guilt, punishment or impeachment of witnesses. It does not require the government to disclose the fact that the evidence presented is secretly inadmissible.
And the worst thing is, there’s nothing particularly secret about the device or how it works. It’s pretty simple stuff. And it’s all available with a subpoena to the phone company! The government would rather see armed robbers go free rather than just do their jobs. That’s a miscarriage of justice as well.