On Thursday evening, the ACLU published a 2009 e-mail exchange (PDF) between police departments in Sarasota, Florida, and North Port, Florida, indicating that local law enforcement had concealed the use of cell phone-tracking Stingray devices in court documents. Stingray is a trademark, but it has come to generally mean devices that can be used to track phones or even intercept calls and text messages.
Although the Sarasota Police Department and the North Point Police Department did not own Stingray devices, the two departments had borrowed the cell phone trackers from the US Marshals Service (USMS), which requested that they hide the use of the Stingrays from judges and defendants. The issue was discussed in the e-mails when the Sarasota Police Department realized that a North Point detective had been too explicit in a probable cause affidavit (PCA), specifically detailing "the investigative means used to locate the suspect." The Sarasota Police asked that the North Point Police seal the old affidavit and submit a new, more vague one.
The e-mail continues:
In the past, and at the request of the U.S. Marshalls [sic], the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as 'received information from a confidential source regarding the location of the suspect.' To date this has not been challenged…
The e-mail is significant because the ACLU had been pushing to get the city of Sarasota to hand over its records on Stingray use, only to have those efforts thwarted by the USMS, which physically removed stacks of paper records from the city. A state circuit court then found that it could not compel a federal agency to hand those records over. The ACLU has found that cops in at least 15 states use cell phone-tracking devices.
Knowledge about the devices has been guarded fiercely by law enforcement and manufacturers alike. Earlier this year, a Florida police department said that it failed to tell judges about its use of a Stingray device because "the department got the device on loan and promised the manufacturer to keep it all under wraps."
The use of these cell-tracking devices has existed ” in a legal grey zone ,” as Ars has previously reported. This isn’t the first time law enforcement has withheld from judges details on how information about a suspect was obtained. In 2013, the ACLU released a Justice Department document showing that federal investigators were using Stingray devices, but hiding the details from federal magistrates when asking for permission to use the technology.
As the ACLU wrote tonight, "Concealing the use of stingrays deprives defendants of their right to challenge unconstitutional surveillance and keeps the public in the dark about invasive monitoring by local police."
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