In the wake of the Edward Snowden leaks of nearly two years ago, the NSA, FBI, and even local police have hammered a consistent drumbeat of trust. Time and time again, at every level of government, local to national, elected officials and appointed commissioners have promised that the cutting-edge tools of mass surveillance used to hoover your personal information are actually tightly controlled and used only under appropriate conditions. Unfortunately, available evidence continues to blow holes in this narrative, most recently in New York State.
The Erie County police department* has now acknowledged that it has used a stingray device 47 times, and only sought actual permission to deploy the device once. Even in that single case, the police department misrepresented the nature of the hardware, claiming that stingrays cannot be used to intercept calls and text messages. In that case, the police only sought a court order — not a warrant, despite the fact that the capabilities of a stingray most likely justify a warrant as the most appropriate form of permission. The Erie County police department has been caught lying in public; Sheriff Hall previously told lawmakers and reporters that stingrays and similar devices were only used under “judicial review.”
This has now been proven demonstrably false — and it’s not the worst disclosure. A comprehensive, non-redacted agreement between the FBI, the Harris Corporation (which builds stingray devices), and the Erie County Police Department has also been released. This agreement explicitly requires that the Erie County PD make every effort to hide, obfuscate, and avoid any attempt to require disclosure of how this technology operates to the public, the courts, or in response to a Freedom of Information Act. The document states:
“In order to ensure that such wireless collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions, operation, and use shall be protected from potential compromise by precluding disclosure of this information to the public in any matter including but not limited to: in press releases, in court documents, during judicial hearings, or during other public forums or proceedings.” (Emphasis added).
The EULA from hell
Ridiculous EULAs or terms of service (TOS) agreements are nothing new to the computer industry. One common line of thinking when it comes to such documents, particularly those that assert that the company is allowed to engage in unlawful behavior, is that the agreement isn’t enforceable — it’s just legal boilerplate. This kind of joint agreement shows how dangerous that thinking is.
The very terms of the agreement make it impossible for any legal department to bring this before a judge. Elsewhere in the document, the FBI mandates that it be informed about any attempt to compel release of information or documentation in order to preserve the supreme secrecy of the device. All of this is done under the auspices of national security, which means that no judge, save for the rubber-stamp FISA court, can credibly be said to have grappled with the true technical capabilities of stingrays.
The really killer claim is on Page 3. “In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation.”
If the Erie County PD can’t actually influence whether a case is brought to trial, the FBI further stipulates, “It is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.”
Consider the implications of this: The FBI is reserving, for itself, the right to kill a case brought by local authorities. In and of itself, this is far from unheard of. But it’s performing that task in the service on behalf of the Harris Corporation, purportedly to protect national security interests. The question of protecting the civil rights of the accused or guaranteeing due process of law are not addressed in this document — only a single sentence establishes that the Erie County PD is required to operate the device “in accordance with Federal law.”
If the technology provided by the Harris Corporation is so valuable and necessary to the pursuit of terrorists, why can the FBI not make that case in open court, or even behind the closed doors of a judicial hearing? The document makes vague claims that suspects might be able to circumvent stingrays, but no credible evidence suggests this is actually possible. If you own a device manufactured by a major cell phone provider, and it communicates with a US network via SIM card, then your data connection can be snooped, period. The idea that a suspect might have some magical, client-side device that obfuscates this capability is tenuous at best. If the end result is that criminals use fewer cell phones, it means they’ll simply be pushed back to using devices like wireline phones and desktops — and both are already covered by existing wiretapping laws.