Police in western New York state have been ordered to reveal secret documents containing information on the purchase and use of surveillance technology that collects data from cellphones.
On Tuesday, a New York State Supreme Court judge said that Erie County’s top law enforcement agency must turn over documents concerning its use of a spy tool that gives authorities the ability to collect identifying information on groups of people, including individualized location data, by mimicking the behavior of cellular phone towers.
The surveillance tool, a cell site simulator marketed to police departments by Harris Corp. of Florida as a “StingRay,” has become increasingly popular among law enforcement across the United States in recent years. When the New York Civil Liberties Union (NYCLU) evoked the state’s Freedom of Information Law to request details about the Erie County Sheriff’s Office use of the spy technology, however, their demands were denied on account of claims from the police that disclosing any records would, among other factors, reveal trade secrets and criminal investigative techniques.
The NYCLU challenged the Sheriff’s Office’s rejection last November, and State Supreme Court Justice Patrick NeMoyer ruled this week from the seat of the county in Buffalo, NY that ESCO must indeed turn over a trove of StingRay-related papers, including purchase orders, internal reports and correspondence in its possession involving Harris Corp., contrary to law enforcement’s claims that the documents are exempt from public records requests.
“The court today has confirmed that law enforcement cannot hide behind a shroud of secrecy while it is invading the privacy of those it has sworn to protect and serve,” NYCLU staff attorney Mariko Hirose said in a statement. “The public has a right to know how, when and why this technology is being deployed, they deserve to know what safeguards and privacy protections, if any, are in place to govern its use.”
NeMoyer ruled that among the information sought by NYCLU are files “of quintessentially compelling interest to and of undeniable impact upon the taxpaying public.”
Specifically, NeMoyer ordered the Sheriff’s Office to produce original copies of order forms for two surveillance systems, the proprietary software for each and training classes purchased from Harris Corp, amounting to a total of around $350,000 of taxpayer money on spy tools. Additionally, the court says the county must turn over an internal report accounting for the department’s use of the system from May 2010 to October 2014 which, according to NeMoyer, reveals that authorities only obtained a court order once during that four-year span before using a StingRay to scoop up location data.
Also ordered by the court to be released is a non-disclosure agreement that the Federal Bureau of Investigation gave the Sheriff’s Office to sign before it could allow the agency to acquire or use any such surveillance tools. According to NeMoyer’s review of the document, the FBI told county officials in the document that they should seek the dismissal of a criminal prosecution “in lieu of making any possibly compromising public or even case-related revelations of any information concerning the cell site simulator or its use.”
“If that is not an instruction that affects the public,” NeMoyer wrote, “nothing is.”
Non-disclosure agreement between cops & FBI instructs cops to dismiss cases if they risk revealing stingray tech p18. http://t.co/kuY3O83Axd
— Christopher Soghoian (@csoghoian) March 17, 2015
John A. Curr III, the director of the NYCLU’s Western Regional Office, said that “the Erie County Sheriff has claimed military grade secrecy to prevent the release of information about how it uses StingRays against its own residents.”
“But this is not Iraq or Afghanistan – this is Buffalo. And we have a right to know what the Sheriff is doing to us in the name of keeping us safe,” Curr said in a statement.
Documents obtained through Freedom of Information Act requests filed elsewhere in the US have revealed that StingRays are routinely sold to police department pursuant to the conditions of non-disclosure agreements similar to the one given to officials in Erie County. Earlier this week, the New York Times published an investigative report on the use of NDAs in connection with surveillance tech in which journalist Matt Richtel acknowledged that “nondisclosure agreements make it hard to know how widely the technology has been adopted.”
Nevertheless, Richtel wrote that “news reports from around the country indicate use by local and state police agencies stretching from Los Angeles to Wisconsin to New York.”
READ MORE: Florida police used warrantless 'Stingray' surveillance over 1,800 times
In Erie County, local officials’ reasoning with regards to rejecting NYCLU’s requests “could never have made any sense, and certainly makes no sense in light of subsequent disclosures,” Judge NeMoyer ruled this week. With regards to the NDA, the judge wrote that “the Court must conclude that the document constitutes inter-agency material but nevertheless is not exempt from disclosure pursuant to that exemption inasmuch as it sets forth almost nothing but ‘instructions to staff that affect the public."
“In essence, those instructions are to conceal from the public the existence, technological capabilities or uses of the device.”
In issuing his 29-page order this week, NeMoyer also voiced concerns over the potential constitutional violations afoot as a result of the agency’s use of StingRay technology.
“Clearly, even apart from any concerns about the ‘dragnet’ or general search capabilities of the device, its employment by law enforcement officers to acquire information of the foregoing type, even if not especially within the context of a targeted criminal investigation, has implications under the Fourth Amendment,” as well as state and local statutes, NeMoyer wrote.
“The United States Justice Department is apparently of the view, as are some other law enforcement agencies, civil liberties advocates and courts, that at the very least a pen register or trap and trace order must be obtained before a cell site simulator may be used to ‘ping’ and thereby approximate the location of a particular cell phone and certainly before ascertaining any calling information.”
According to Buffalo’s WIVB News, the Sheriff’s Office said Tuesday that they will review the court’s decision before deciding if and how to move forward.